Advisory Opinion No. 2007-29 Advisory Opinion No. 2007-29 Re: Colonel Davis E. Dejarlais QUESTION PRESENTED The petitioner, Chief of Police for the Town of East Greenwich, seeks an advisory opinion regarding whether his son may be hired as a community service officer for the Town, given that community service officers are hired, assigned and supervised by the petitioner’s subordinates in the police department. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the son of the Chief of Police for the Town of East Greenwich from being employed as a community service officer provided that certain procedures are followed so that the petitioner is removed from personnel decisions or matters that particularly affect his son financially. As is explained below, we find that the procedures and alternate chain of command fashioned by the Town effectively insulate the petitioner from decisions directly affecting his son. The petitioner is the Chief of Police for the Town of East Greenwich. He states that the Town of East Greenwich, through its police department, employs civilian community service officers on an as needed basis to provide manual traffic direction and patron assistance at construction sites and civic events. He asserts that there is such a need for community service officers, that nearly all persons who apply are approved for service. Thereafter, the Town’s contract with the police union requires specific procedures for the assignment of work. Such procedures require priority of offering assignments to regular members of the police department, and then going through those remaining on the list on a seniority basis. Accordingly, the assignment of community service officers is somewhat mechanical pursuant to contract requirements, having little or no opportunity for a subjective decision to deviate from the required procedure. Upon assignment, community service officers are generally supervised by a Lieutenant in the day shift. Decisions of the Lieutenant are subject to review by a Captain and ultimately by the petitioner as Chief of Police. The petitioner’s son wishes to obtain employment as a community service officer. If such employment is permitted, the petitioner states that he will recuse from all matters involving his son such as hiring, assignment, training, supervision and discipline. Furthermore, the petitioner represents that the Town Manager of East Greenwich has agreed to replace the petitioner in the chain of command on any issues that may arise involving the petitioner’s son. Given these representations, the petitioner asks whether his position as Chief of Police precludes his son’s employment as a community service officer in the Town of East Greenwich. 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. See 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, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(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. See R.I. Gen. Laws § 36-14-5(d). The Commission has recently adopted Regulation 5004 containing specific regulations aimed at curbing nepotism. Pursuant to Commission Regulation 5004(b)(1), the petitioner may not participate in any matter as part of his public duties if a family member is a participant or party to the matter, or if there is reason to believe that a family member will be financially impacted or will obtain an employment advantage. Furthermore, the petitioner may not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of a family member, nor may he delegate such tasks to a subordinate. See Commission Regulation 5004(b)(2)(A) & (B). In a series of advisory opinions somewhat analogous to the instant question, though issued prior to the enactment of Regulation 5004, the Commission considered whether particular public officials or employees would be able to work for the same public agency or entity as other family members. In those opinions the Commission 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 took 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. 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 son, 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. 2005-19, where Cranston Chief of Police sought advice given that his brother served as a lieutenant in the department. There, the Commission opined that the Code of Ethics would not prohibit the Chief from continuing in that position notwithstanding that his brother served in the department, given that an alternate chain of command had been established wherein the Mayor would replace the Chief as the final decision-maker on matters concerning the Chief’s brother. 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 petitioner’s representations as to the hiring and assignment process, and considering our past advisory opinions and the provisions of the Code of Ethics including Commission Regulation 5004, it is our opinion that the recusal procedures and alternate chain of command structure outlined by the petitioner and discussed above are reasonable and sufficient to insulate him 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) Regulation 5004 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