Advisory Opinion No. 2004-14

Re: Christine Tellier

QUESTION PRESENTED

The petitioner, a member of the Tiogue Fire District Board, a regional elected position, requests an advisory opinion as to whether she may continue to serve on the Board given that her husband is employed by the Fire District as a full time firefighter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Tiogue Fire District Board, a regional elected position, may continue to serve in that capacity despite the fact that her husband is employed by the Fire District as a firefighter. 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 represents that she serves as a member of the Tiogue Fire District Board. Additionally, she informs that her husband is employed as a full time firefighter for the Tiogue Fire District. Furthermore, she represents that she does not participate in matters involving firefighter employment contracts. The petitioner seeks this advisory opinion to determine whether she may continue to serve as a member of the Board, and what limitations there may be on her service given the fact that the Fire District employs her husband.

Under the Code of Ethics, a public official may not participate in any matter in which she has a financial interest 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). 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.

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 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 her family member, she 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 [her] 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 Board member and District Firefighter does not, in and of itself, present a conflict of interest under the Code of Ethics. However, the petitioner may not participate in the Board’s consideration of any personnel matters involving her husband. 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. Further, Regulation 5002 requires her to provide written notice to the District Board in such circumstances. Finally, notices of recusal should be filed with Ethics Commission and the Tiogue 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:

2002-53

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

GCA 1

Keywords:

Dual public roles

Family: Public Employment

Family: Supervision

Nepotism