Advisory Opinion No. 2002-53

Re: Denise Brown

QUESTION PRESENTED

The petitioner, a clerk for the Coventry Tax Collector, a municipal employee position, requests an advisory opinion as to whether she may serve part-time as the Hopkins Hill Fire District Tax Collector, a regional elected position, given that her husband serves as the District’s Fire Chief.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a clerk for the Coventry Tax Collector, a municipal employee position, may serve part-time as the Hopkins Hill Fire District Tax Collector, a regional elected position, despite the fact that her husband serves as the District’s Fire Chief. However, she must recuse from participating and voting in the Fire District’s consideration of matters financially impacting her husband. See R.I. Gen. Laws §§ 36-14-5(a) and (d).

The petitioner is employed as a clerk for the Coventry Tax Collector. She represents that there currently is a vacancy in the position of Tax Collector for the Hopkins Hill Fire District in Coventry. The District Tax Collector is elected at a special meeting of the District taxpayers. She represents that Town of Coventry has seven fire districts, all of which are individually chartered. She advises that the District Tax Collector serves on the District’s Board of Directors and must be a taxpayer in the District. She informs that her husband is the District’s Fire Chief and is employed by the District Board.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she, any family member or business associate, or any business by which she is employed, 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- 7(a). R.I. Gen. Laws § 36-14-5(b) prohibits her from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. The official further is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Finally, Commission Regulation 5002 requires a public official to recuse herself from participation and notify her board or agency in writing when her spouse appears before her board or agency.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to the petitioner’s simultaneous service as a clerk for the Coventry Tax Collector and as the Hopkins Hill Fire District Tax Collector. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duty in the public interest. While there may be overlap in the petitioner’s public roles, a substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity, such as the District’s use of a property valuation established by the Town of Coventry. While the jurisdictional areas overlap, the activities of the District Tax Collector and the Coventry Tax Collector’s Office are separate and distinct. See A.O. 2000-54 (concluding that simultaneous service as the Charlestown Tax Assessor and the Dunn’s Corners Fire District Tax Collector/Assessor does not constitute an inherent conflict of interest); A.O. 96-17 (opining that the Dunn’s Corners Fire District Tax Collector simultaneously may serve as the Charlestown Tax Collector).

The Commission concludes that the petitioner may serve as the part-time Hopkins Hill Fire District Tax Collector while simultaneously employed as a clerk for the Coventry Tax Collector. In the event that a matter comes before the petitioner, in either capacity which would have a financial impact on the other public body or the petitioner herself, or which she believes would impair her independence of judgment as to her official duties or require her to disclose confidential information, the petitioner should (a) notify the appropriate entity, in writing, of the nature of her interest in the matter at issue, and (b) recuse from any participation or voting in connection with such matter.

Further, in General Commission Advisory (GCA) No. 1, the Commission applied and interpreted the above Code 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.

Accordingly, the Commission concludes that the simultaneous service of family members in the respective positions of District Fire Chief and District Board member does not, in and of itself, present a conflict of interest under the Code of Ethics. However, as a Board member, the petitioner’s familial relationship with the Fire Chief would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and (d). Therefore, she may not participate in the Board’s consideration of any personnel matters involving the Fire Chief. She must recuse from participation and vote in any matters that would impact her spouse financially, including issues of salary, job performance or reappointment. Consistent with the prohibitions of Regulation 5002, the petitioner must recuse from participation whenever her spouse appears before the District Board. Regulation 5002 further also her to provide written notice to the District Board in such circumstances. Finally, notices of recusal should be filed with Ethics Commission and the Hopkins Hill Fire District 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
36-14-5002

Related Advisory Opinions:

2002-48
2002-17
2001-40
2001-36
2001-35
2000-89
2000-81
2000-59
2000-54
2000-42
2000-16
2000-5
99-147
99-47
98-119
96-17
GCA 1

Keywords:

Dual public roles
Family: Public Employment
Family: Supervision
Nepotism