Advisory Opinion No. 2002-48

Re: Mark P. Welch, Esq.

QUESTION PRESENTED

The North Providence Town Solicitor requests an advisory opinion on behalf of the North Providence Town Council, municipal elected positions, as to whether 1) it may appoint a sitting Councilor’s sister as Town Clerk; and 2) any subsequent violation of the Code of Ethics would arise by the Council conducting business with the Town Clerk while her brother sits on the Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the North Providence Town Council may conduct business with the North Providence Town Clerk, despite her familial relationship with a sitting Councilor, without running afoul of the Code of Ethics. However, the Councilor with whom the Town Clerk has a familial relationship must recuse from participating and voting in the Council’s consideration of matters financially impacting his family member. See R.I. Gen. Laws §§ 36-14-5(a) and (d).

The North Providence Town Solicitor advises that the North Providence Town Council received eighteen applications in response to an advertisement for the position of Town Clerk. Councilor John A. Zambarano’s sister, Mary Ann DeAngelus, submitted one of eighteen applications.

In June 2001, the Council voted to afford interviews to four applicants, including Ms. DeAngelus. In July 2001, the Council interviewed the four applicants and voted to appoint Ms. DeAngelus as Town Clerk. The Town Solicitor represents that Councilor Zambarano did not participate in the selection of Town Clerk candidates, and recused from all Council actions relative to the interview and appointment process.

The Town Solicitor’s first inquiry, whether the Council may vote to appoint a sitting Councilor’s sister to the position of Town Clerk, has been rendered moot. The Council’s appointment of Ms. DeAngelus is a fait accompli at this juncture. The Commission may only issue advisory opinions regarding prospective, not past, conduct. However, in addressing the Council’s second query, whether it may conduct business with a Councilor’s sister serving as Town Clerk, the Commission must undertake the same legal analysis implicated in the first instance.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. A substantial conflict of interest occurs if he or she has reason to believe or expect that he or she, any family member or business associate, or any business by which he or she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). The official is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate or a family member. 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 prohibit 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 since the issuance of GCA No. 1, the Commission has considered whether, in light of the relevant Code provisions and GCA 1, particular public officials or employees would be able to 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.

Based on the Town Solicitor’s representations, Councilor Zambarano recused from participation in all matters relating to the selection and appointment of the Town Clerk. Accordingly, the Commission concludes that the simultaneous service of family members in the respective positions of Town Clerk and Town Councilor does not, in and of itself, present a conflict of interest for the North Providence Town Council under the Code of Ethics. However, Councilor Zambarano’s familial relationship with the Town Clerk triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and (d). Therefore, he may not participate in the Council’s consideration of any personnel matters involving the Town Clerk. He must recuse from participation and vote in any matters that would impact the Town Clerk financially, including issues of salary, job performance or re-appointment. Notice of recusal should be filed with the Ethics Commission and the North Providence Town Council in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-6
36-14-5005

Related Advisory Opinions:

2002-17
2001-40
2001-36
2001-35
2000-89
2000-81
2000-59
2000-42
2000-16
2000-5
99-147
99-47
98-119
GCA 1

Keywords:

Family: Public Employment
Family: supervision
Nepotism