Advisory Opinion No. 2006-39 Advisory Opinion No. 2006-39 Re: Chief Steven J. Catanzaro QUESTION PRESENTED The petitioner, Chief of the North Providence Fire Department, a municipal appointed position, requests an advisory opinion as to whether his son may apply for a position as a member of the North Providence Fire Department provided that the petitioner does not participate in any aspect of the application process involving any candidate prior to his retirement in March of 2007. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the son of the petitioner, Chief of the North Providence Fire Department, a municipal appointed position, could apply for a position as a member of the North Providence Fire Department provided that the petitioner does not participate in any aspect of the application process for any candidate prior to his retirement in March of 2007. The petitioner is the Chief of the North Providence Fire Department (hereinafter “the Fire Department”). He advises that his son would like to apply for a position as a member of the Fire Department. The petitioner informs that the position of firefighter is attained by a competitive application process whereby the candidates are put through various types of testing procedures. The petitioner states that there is a physical agility test, a swim test, a ladder test and a written test. He advises that the written test is proctored by a member of the Fire Department who is chosen by the Mayor. The petitioner further advises that the written test is independently prepared and scored by an outside agency. He informs that after the written test is administered and handed in, a courier service delivers the test to the post office for delivery to the independent company for scoring. The petitioner advises that the last step in the application process is the oral board examination, which would not take place until after his retirement in March of 2007. He states that as Chief of the Fire Department, his only participation, from past experience, was to serve on the oral board and recommend qualified candidates to the Mayor for employment with the Fire Department. The petitioner represents that he is planning to retire from the Fire Department in March of 2007. The petitioner further represents that he will not participate in any aspect of the application process involving any candidate prior to his retirement if his son is allowed to apply for a position. 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. R.I. Gen. Laws § 36-14-5(a). 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. R.I. Gen. Laws § 36-14-7(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 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. We note that in this case, given the petitioner's status as the Chief of the Fire Department, all other members of the department are his subordinates. Accordingly, although the petitioner may recuse from all matters concerning his son, it is not feasible for all of his subordinates (every fire department employee) to similarly recuse given their role during the written examination. However, according to the petitioner’s representations, these subordinates are selected by the Mayor, not the petitioner, and will only participate as proctors for the written examination. Furthermore, although the Fire Department personnel participate in the administration of oral boards, the petitioner represents that such interviews will not occur until after his retirement. After considering the relevant provisions of the Code of Ethics, past advisory opinions and, more importantly, the representations by the petitioner that he will not participate in any aspect of the application process for any candidate prior to his retirement in March of 2007, we find that the petitioner is sufficiently insulated from apparent conflicts of interest. 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 : 2005-19 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