Advisory Opinion No. 2002-43 Re: Mary C. Canole, Ed.D. A. QUESTION PRESENTED The Newport Superintendent of Schools, a municipal employee position, requests an advisory opinion as to whether her daughter may accept employment by the Newport Public Schools as a teacher at the Thompson Middle School. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Newport Public Schools from employing the petitioner’s daughter as an English/Language Arts teacher at the Thompson Middle School, provided that the petitioner does not take action on personnel matters or matters that affect her daughter financially. The Commission finds that sufficient safeguards exist within the Newport Public Schools to insulate the petitioner from participation in matters involving her daughter. C. DISCUSSION 1. Facts The petitioner advises that her daughter, Katherine L. Canole, recently applied for a middle school English/Language Arts position in the Newport Public Schools at the Thompson Middle School. Her daughter served as a substitute teacher in the district during the 2000-2001 school year, prior to the petitioner’s appointment as Superintendent of Schools. Under normal circumstances, an interview committee would recommend an applicant to the Superintendent for appointment, with the advice and consent of the Newport School Committee. According to the Newport Schools Coordinator of Human Resources, who facilitated the interview committee, the Thompson Middle School principal selected the interview committee. Its members included the principal, a language arts teacher, a reading teacher, an English teacher, an Equity in Education Commission member and a middle school parent. She advises that the Superintendent had no input in the committee’s selection process or establishment of job criteria. She states that the principal approved job criteria previously used for the subject position. Due to the familial relationship present, the petitioner indicates that the interview committee presented its recommendation of her daughter directly to the School Committee. Based on the advice of legal counsel, the School Committee appointed the Assistant Superintendent of Schools to make the appointment at issue. The School Committee lacks the authority to make such appointment itself, but provides advice and consent. On July 9, 2002, the School Committee unanimously approved Dr. Robert Power’s appointment of Ms. Canole to the position of Grade 8 English/Language Arts teacher at the Thompson Middle School. The petitioner states that she did not take any action on the recommendation, advice and consent of her daughter’s appointment. The petitioner has submitted additional information for the Commission’s review, including an organizational chart outlining existing procedures that ensure that she would not exercise supervisory authority over her daughter. Additionally, the petitioner maintains that the Newport School System would face a considerable hardship if it is unable to adequately staff its middle school with qualified teachers by the opening of school on September 4, 2002. She advises that it is difficult to attract qualified teachers to this urban, low performing school. The principal of the Thompson Middle School, Jane E. Regan, states that the school received only nine applicants for the grade 8 Language Arts teaching position. Of the (9) nine applicants (4) four were disqualified for not having the proper middle school endorsement for state certification. The remaining (5) five candidates were granted interviews. As a result of the interviews, only (2) two applicants received “Exceptional” ratings while the remaining (3) three were deemed “Average” or “Weak”. The petitioner’s daughter was one of the two “Exceptional” candidates. In addition, the petitioner informs that orientation for all middle school teachers takes place on August 13, 14 and 15, 2002. She states that attendance is critical since teachers will be entering a newly constructed middle school building. Further, teachers need to familiarize themselves with the new building, safety features, and the new policies and procedures for smooth operation and effective instruction. The Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of her duties in the public interest. A substantial conflict of interest exists if the official or employee has reason to believe or expect that she or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her immediate family. See R.I. Gen. Laws § 36-14-5(d). In General Commission Advisory (GCA) No. 1, the Commission applied and interpreted these provisions to specific nepotism concerns. In that opinion, the Commission recognized that the cited provisions would prevent a public official or employee from participating in personnel decisions regarding another family member. Specifically, the Commission recognized in GCA No. 1 that, in addition to hiring decisions, the public official or employee would be prohibited from having any significant involvement in decisions concerning reappointment, promotion, or reclassification of a family member. This necessarily includes job performance evaluations since they play a role in job retention, promotion, and other job-related benefits of financial interest to the employee. Additionally, in GCA No. 1, the Commission found that, not only is the public official or employee prohibited from participating in personnel decisions affecting his family member, he is also prohibited from delegating this authority to a subordinate since "the official is in a position to choose and influence the person most likely to favor [his] family member." In a series of advisory opinions, the Commission has considered whether, in light of the relevant Code provisions and GCA 1, particular public officials or employees could work for the same public agency or entity as other family members. The Commission has declined to adopt a blanket or absolute prohibition against one family member serving in a department or agency in which another family member has supervisory responsibilities. Rather, the Commission generally has taken the position that a public official or employee serving in a supervisory capacity will satisfy the requirements of the State’s Code of Ethics by recusing from participation in matters directly affecting his or her family member. In Advisory Opinion 95-71, the Commission recognized that the practicality of achieving this objective may pose a problem since recusal on all relevant issues would require an individual from an unrelated department, not under the public official's control, to make such decisions. Additionally, if the public official recuses on a routine or frequent basis, he may be in violation of Commission Regulation 36-14-5003. Also, recusal itself may not be sufficient because the existing structure of a department necessarily places the family members within the same chain of organizational command. In light of these practical concerns, the Commission recognized that another alternative would be to establish a system within the department or agency that would serve the purpose of insulating the official from all issues directly affecting his family member. To accomplish this end, a procedure must be fashioned so that the public official has no involvement in employment or personnel decisions affecting his or her family member. See A.O. 95-71 (opining that the Code of Ethics does not prohibit the Rhode Island Department of Transportation from promoting an individual to the position of Assistant Director of Transportation (Real Estate) where a direct subordinate of her husband would be her immediate supervisor if it established an adequate "Chinese Wall" (i.e, no involvement in the day-to-day supervision of his spouse or with personnel issues that affect her directly.)). Previously, the Commission has considered whether a department or agency had established sufficient procedures to insulate a public official from decisions affecting a member of his family. In opinions issued to the Director of Administration for the City of Cranston and the Secretary of State, respectively, the Commission found that both administrators had devised sufficient hiring and supervisory procedures to insulate the interested public officials from employment decisions affecting their family member. Therefore, the Code of Ethics would not prohibit the City of Cranston or the Secretary of State's office from simultaneously employing both family members. See A.O. 96-109 (advising that the City of Cranston’s Director of Administration could accept appointment to that position where his spouse serves as the City's Purchasing Agent if he does not participate in the day-to-day supervision of his wife and all personnel issues affecting his spouse are handled by the Mayor or an official who does not report to the Petitioner as Director of Administration); and A.O. 96-118 (concluding that the Code of Ethics did not prohibit the Secretary of State from hiring and employing the mother of his Chief of Staff since the Petitioner had devised both hiring and supervisory procedures that insulate the Chief of Staff from employment decisions that affected his mother). The Commission has concluded, however, that a family member should not be hired by a public entity if there were no alternative chain of command that would insulate the public official or employee from employment decisions affecting her family member. See e.g. A.O. 97-140 (opining that the nephew of the North Smithfield Police Chief should not serve as an officer in the North Smithfield Police Department while his uncle served as Chief since, given the structure of the Police Department, there was no alternative chain of command that would insulate the Chief completely from supervisory responsibilities regarding his nephew); A.O. 97-6 (concluding that the Mayor of North Providence could not hire his cousin to serve as his Director of Personnel, a position that reported directly to the Mayor). In Advisory Opinion No. 99-47, the Commission opined that the Code of Ethics did not prohibit the Mayor of North Providence from approving the transfer of his first cousin to the position of Assistant Mechanic within the Fire Department. There, the Mayor did not have involvement in the selection and hiring process for the position, which was under the direct supervision of the Mechanic. However, the Mechanic reported to and was supervised by the Fire Chief, who reported directly to the Mayor. The Commission found that his appointment of his cousin, who was selected for the position by the Fire Chief, was ministerial in nature and would not constitute a violation of the Code. See A.O. 99-47. The instant matter presents a similar supervisory hierarchy to that previously considered in Advisory Opinion No. 99-47. The normal chain of command for a middle school teacher involves supervision by a Grade Leader, who is supervised by the Principal, who in turn reports to the Director of Teaching and Learning. The Director reports to the Assistant Superintendent and then to the Superintendent. Here, the petitioner would not supervise her daughter as a middle school teacher, nor would she supervise her immediate superior. Under the established chain of command, the Grade Leader for Grade 8 would immediately supervise Katharine Canole. The Grade Leader reports to the principal of Thompson Middle School. The Grade Leader evaluates all new teachers twice yearly for a three-year period. If all evaluations are satisfactory, the teachers obtain tenure automatically. In the event that the Grade Leader perceives a problem, the principal participates in evaluations. The petitioner represents that the School Department has no obligation to renew a non-tenured teacher who receives less than satisfactory evaluations. She advises that intensive assistance is available if a new teacher receives less than satisfactory evaluations. Such assistance would involve the participation of the Grade Leader, principal and a fellow union member. Further, she states that the present mechanism by which the School Department handles grievances filed by union members would allow her to recuse from participation in any matter involving her daughter and the matter would be handled by the School Committee. The fact that the Assistant Superintendent, the petitioner’s subordinate, presented the interview committee’s candidate to the School Committee for its approval does not run afoul of the Code of Ethics. As addressed in Advisory Opinion No. 99-47, the Commission has deemed a public official’s action in approving the appointment of a family member, selected without his participation, to be ministerial where he is required to make such an appointment pursuant to charter. In this case, additional safeguards were present due to the fact that the School Committee, the petitioner’s supervisors, could vote not to accept appointment of the petitioner’s daughter. Based upon past advisory opinions and the provisions of the Code of Ethics, the Commission concludes that the Newport Public Schools may employ the petitioner’s daughter as an English/Language Arts teacher at the Thompson Middle School, given that sufficient procedures are in place to insulate the petitioner from matters affecting her daughter. The petitioner may not take action on personnel matters or matters that particularly affect her daughter financially. In this instance, the petitioner’s daughter would be supervised by the Grade Leader and, in turn, the school principal. The petitioner must recuse from participation in any matters involving the evaluation and supervision of her daughter. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-5003 Related Advisory Opinions: 2001-35 2000-89 2000-81 2000-59 2000-42 2000-5 99-147 99-131 99-47 98-119 98-115 97-140 97-6 96-118 96-110 96-109 96-16 95-71 95-45 92-56 91-32 GCA 1 Keywords: Family: public employment Family: supervision Nepotism