Advisory Opinion No. 2007-7 Advisory Opinion No. 2007-7 Re: Edward F. Lavallee QUESTION PRESENTED: The petitioner, the City Manager for the City of Newport, a municipal appointed position, requests an advisory opinion as to whether the City Solicitor may act as the appointing authority, in place of the City Manager, to appoint seven individuals who are candidates for employment with the City of Newport Police Department given that the petitioner’s son is one of the seven candidates. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the City Solicitor for the City of Newport may act as the appointing authority, in place of the City Manager, to appoint seven individuals who are candidates for employment with the City of Newport Police Department notwithstanding that the City Manager’s son is one of seven candidates, provided that certain procedures are followed so that the City Manager is completely removed from all personnel decisions or matters that particularly affect his son financially. The petitioner is the City Manager for the City of Newport (“the City”). The petitioner informs that pursuant to the City of Newport Charter and Ordinances, the City Manager is appointed by the City Council and serves as the Chief Operating Officer. The petitioner advises that the City Manager is empowered to approve the hiring and firing of all employees. In addition, the petitioner states that the City Manager is responsible for the day to day operations of the City and has in his employ approximately 300 individuals. The petitioner represents that the City Council, by Charter, is prohibited from being involved in any hiring or termination process. The petitioner further represents that the City Solicitor is appointed by the City Council, he reports directly to the City Council and, by Charter, is not a subordinate of the City Manager. The petitioner advises that the City conducted a recruitment and testing process to establish a list of candidates to fill personnel vacancies in the Police Department. The petitioner advises that following the completion of the recruitment process, physical agility and written testing, background investigations and oral board examination of applicants by the Police Department, the Chief of Police forwarded a recommendation for the appointment of seven candidates to the Human Resources Department. The petitioner further advises that the Human Resources Department then forwarded the Police Department’s request to the Office of the City Manager for approval to fill the vacancies. The petitioner states that his son is one of the seven candidates for employment with the Police Department. The petitioner informs that after the candidates are appointed, they are required to successfully complete the Municipal Police Academy and a probationary period of employment prior to being appointed as a full time Newport Police Officer.Given these representations, the petitioner seeks guidance from the Commission as to whether there would be any violation of the Code of Ethics if he recused from the appointment process involving his son, and instead the City Solicitor assumed all responsibility for making the appointments. 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 the above Code provisions. In that opinion, the Commission recognized that the cited provisions would prohibit a public official or employee from participating in personnel decisions regarding a 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. 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. 2005-19 (opining that the Code of Ethics does not prohibit the petitioner, the Chief of Police for the City of Cranston, 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); 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). In addition to these longstanding provisions and interpretations of the Code of Ethics, the Ethics Commission recently enacted a new regulation that specifically regulates a public official's ability to take action that concerns or financially benefits a family or household member. Effective February 1, 2007, this regulation reads, in part: (1) Nepotism Generally. No person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. (2) Advocacy/Supervision Regarding Family/Household Members. (A) No person subject to the Code of Ethics shall participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family or a household member, in the state or municipal agency in which the official or employee is serving or over which he or she exercises fiscal or jurisdictional control, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion. Commission Regulation 5005.1(b)(1) and (b)(2). Clearly, the petitioner may not participate in any way with the appointment of the seven individuals who are candidates for employment with the Police Department nor can any of his subordinates participate in his place. However, since the City Solicitor, by Charter, reports directly to the City Council and is not a subordinate of the petitioner, he would be allowed to act as the appointing authority in this instance without running afoul of the Code of Ethics. Accordingly, after considering the relevant provisions of the Code of Ethics, past advisory opinions and the petitioner’s representations, it is our opinion that the procedures outlined by the petitioner and discussed above are reasonable and sufficient to insulate the City from apparent conflicts of interest. In the event that the petitioner’s son is successful and is offered full-time employment with the City, the petitioner is strongly encouraged to seek further guidance from the Commission. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-5005 Related Advisory Opinions : 2005-19 2003-63 2001-35 2000-89 2000-5 GCA 1 Keywords : Family: public employment Family: supervision Nepotism