Advisory Opinion No. 2004-21

Re: Brian Gartland

QUESTION PRESENTED

The petitioner, a prospective nominee for the Nasonville Fire District Operating Committee, an elected position, requests an advisory opinion as to whether he may seek and/or hold that office given that his father is Chief of the Nasonville Fire Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a prospective nominee for the Nasonville Fire District Operating Committee, an elected position, from serving on the Operating Committee while his father simultaneously serves as Chief of the fire department in that district. However, the Code does require that the petitioner recuse from participating and voting in the Fire District’s consideration of matters financially impacting his father.

The petitioner informs that members of the Operating Committee serve on a volunteer basis without compensation. The petitioner also advises that the Operating Committee manages the affairs and interests of the Nasonville Fire District. In 2001, the petitioner’s father was elected Chief of the Volunteer Fire Department. While it is a volunteer position, the Chief does receive an annual stipend in the amount of $1,200.00. According to the petitioner, the Chief is present at Operating Committee meetings to present his Report, which generally consists of fire and rescue calls for the previous month. In his Report, the Chief may also address budgetary issues concerning the Fire Department.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, direct or indirect, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his or her official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate, an employer or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(d) further prohibits an official from using his or her position or confidential information received though his or her position to obtain financial gain, other than that provided by law, for himself or any person within his family.

In an analogous opinion, A.O. 99-73, the Commission considered whether a member of the Nasonville Fire District Operating Committee, elected in 1998, could continue to serve in that capacity given that in 1999 her spouse had been elected Chief of the Nasonville Fire Department. The Commission stated that the fact that the Chief reports to the Operating Committee about Fire Department business, “does not, in and of itself, require recusal under the Code of Ethics.” The Commission concluded that the Operating Committee member could continue to serve in that capacity as long as she recused from any matter concerning her spouse’s stipend or any other matter that could financially impact him. See also A.O. 2004-14 (opining that the petitioner, a member of the Tiogue Fire District Board, could continue to serve in that capacity despite the fact that her husband is employed by the Fire District as a firefighter).

According to the petitioner in the instant matter, the functions of the Nasonville Fire Chief and the Operating Committee have not changed substantially since 1999. Based upon the petitioner’s representations and the Commission’s review of past advisory opinions, the Commission concludes that the petitioner may serve as a member of the Operating Committee while his father simultaneously serves as Chief. If elected to serve on the Operating Committee, the petitioner could participate in matters affecting the Fire Department generally, but must not participate in matters financially impacting his father, including the discussion and vote on his father’s stipend. In the latter case, we remind the petitioner to file a notice and recusal form with both the Operating Committee and 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)

Related Advisory Opinions:

2004-14

2001-35

2000-59

99-73

98-132

97-115

97-49

GCA 1

Keywords:

Family: Public Employment

Nepotism