Advisory Opinion No. 2005-19 Re: Colonel Stephen McGrath QUESTION PRESENTED: The petitioner, Chief of Police for the City of Cranston, a municipal appointed position, requests an advisory opinion as to what limitations the Code of Ethics places upon him in his capacity as Chief of Police given that his brother is a lieutenant in the same department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the Chief of Police for the City of Cranston, a municipal appointed position, from serving in that position while his brother serves as a lieutenant in the Cranston Police Department provided that certain procedures are followed so that the petitioner is removed from personnel decisions or matters that particularly affect his brother financially. As is explained below, we find that the supervisory procedures fashioned by the department effectively insulate the petitioner from public employment decisions directly affecting his brother. The petitioner is the Chief of Police for the City of Cranston. He has been a member of the Cranston Police Department since October 1985. His brother, who has been employed by the Cranston Police Department since October 1989, currently holds the rank of lieutenant. As the Chief of Police, the petitioner has authority in all department matters and thus, would necessarily be in a supervisory position over his brother. However, the petitioner has represented that there is an alternative chain of command available that will completely insulate him from any supervisory responsibilities regarding his brother. The petitioner seeks guidance from the Commission as to whether these management procedures are sufficient under the Code of Ethics. The petitioner has advised that he has recused and will continue to recuse himself from matters directly affecting his brother including, but not limited to, promotions, evaluations, training assignments, reassignments, grievances, disciplinary issues, or any other matter which would be of financial benefit or detriment to his brother. The petitioner further represents that an alternative chain of command has been established concerning the day-to-day supervision of the petitioner’s brother. Specifically, the petitioner’s brother reports to a captain who reports to the major. In the normal course, the major would report to the chief. However, in order to insulate the petitioner, any matters relating to the aforementioned employment issues involving the petitioner’s brother would now be decided by the Mayor. Additionally, the petitioner advises that pursuant to the City Charter, he is responsible for interviewing the top three (3) candidates on each promotional list when a vacancy occurs within the particular rank. Although the petitioner’s brother is on the certified captain’s list, he does not currently occupy one of the top three (3) positions. Once the interviewing process has been completed, the Chief of Police makes a recommendation to the Mayor, who is the appointing authority. The petitioner has informed that since his brother is on the list, he will recuse himself from any involvement in this promotion, will not participate in any way with the interviewing process and will not make a recommendation to the Mayor. Instead, the Mayor and two of his designees will interview the top three (3) candidates with the Mayor being the final appointing authority. Furthermore, the major will not be involved in any way with the interview process for this particular rank based upon his subordinate position to the petitioner. The petitioner represents that this procedure will be in effect until his brother is no longer a candidate for the rank of captain. The petitioner seeks an opinion from the Commission as to whether the policies and procedures currently implemented by the department are sufficient under the Code of Ethics. 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 his duties in the public interest. A substantial conflict of interest exists if the official or employee has reason to believe or expect that he or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § § 36-14-5(a), 7(a). Also, a public official or employee may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his immediate family. 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. 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 No. 1, particular public officials or employees would be able to work for the same public agency or entity as other family members. These past opinions are somewhat analogous to the instant question. 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 Code of Ethics by recusing from participation in matters directly affecting his 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 to make such decisions. Also, recusal in and of 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 family member. See A.O. 2000-5 (Code of Ethics does not prohibit Chief of the Office of Food Protection at Department of Health from serving in that position while his fiancée and soon to be spouse serves in subordinate position in Office, provided that certain procedures are followed to insulate petitioner from matters that particularly affect his spouse financially); A.O. 98-115 (URI could hire and/or employ Head Coach’s son provided that Head Coach would not take part in hiring process, and that Athletic Director would assume all supervisory responsibilities relating to his son); A.O. 96-118 (Secretary of State not prohibited from hiring and employing mother of his Chief of Staff since Petitioner had devised both hiring and supervisory procedures that insulate Chief of Staff from employment decisions that affected his mother); A.O. 96-109 (Cranston Director of Administration could accept appointment to that position where his spouse serves as City's Purchasing Agent, if he does not participate in day-to-day supervision of his wife and all personnel issues affecting his spouse are handled by Mayor or an official who does not report to Petitioner). We note that in this case, given the petitioner's status as the Chief of Police, all other members of the department are his subordinates. Accordingly, although the petitioner may recuse from all matters concerning his brother, it is not feasible for all of his subordinates (every police department employee) to similarly recuse. This issue is similar to one raised in A.O. 2000-16, where the Executive Director of Rhode Island Housing and Mortgage Finance Corporation (R.I. Housing) sought advice concerning appropriate procedures to follow in R.I. Housing's dealings with a not-for-profit corporation that received funds from R.I. Housing and that employed his fiancée as its Executive Director. There, the Commission was satisfied with the petitioner's representation that he would recuse from any matters involving his fiancée's organization in favor of the Board of R.I. Housing (petitioner's superior). However, because it was not feasible for the Board to handle the day-to-day administration of R.I Housing's contacts with the petitioner's fiancée's organization, the Commission did not require the recusal of the petitioner's subordinate staff members from such matters provided that procedures were set in place to insulate the petitioner from the conflict. See also A.O. 2002-43 (Newport Public Schools could hire Newport Superintendent's daughter as middle school teacher, given fact that sufficient procedures were in place to insulate Superintendent from daughter's supervision, and given Superintendent's recusal from all matters involving daughter's supervision and evaluation). After considering the relevant provisions of the Code of Ethics, past advisory opinions and the petitioner’s representations, it is our opinion that the recusal procedures outlined by the petitioner and discussed above are reasonable and sufficient to insulate the petitioner from apparent conflicts of interest. The petitioner is cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise given his public position of authority over his family member. The petitioner is encouraged to seek further guidance from the Commission as needed. Finally, when recusing, the petitioner must complete a statement of conflict of interest and comply with the provisions of 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: 2003-63 2001-35 2000-89 2000-5 99-47 98-119 97-140 95-71 GCA 1 Keywords: Family: public employment Family: supervision Nepotism