Advisory Opinion No. 2008-54 Rhode Island Ethics Commission Advisory Opinion No. 2008-54 QUESTION PRESENTED The petitioner, Chairman of the Saylesville Fire District Board of Fire Wardens, seeks an advisory opinion, on behalf of the Board of Fire Wardens, as to whether the son of the Saylesville Fire Chief may be employed as a firefighter in the Fire District, provided that the Fire Chief will not take part in the selection process. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the son of the Fire Chief from being employed as a firefighter in the Fire District, notwithstanding that the Fire Chief will not take part in the selection process, since no alternate chain of command exists to insulate the Fire Chief from apparent conflicts of interest. The petitioner is the Chairman of the Saylesville Fire District Board of Fire Wardens (“Board”). He states that the Board is currently considering the applications of candidates for a paid firefighter position for the Saylesville Fire District (“Fire District”) and that the son of the Fire Chief has submitted his application. The petitioner represents that the son has been a volunteer for the Fire District for many years, and as such, is highly qualified for the position. The petitioner further represents that the Fire Chief would not have any involvement in the selection process, since such responsibility lies exclusively with the Board. The petitioner states that recently the Fairlawn Fire District merged with the Saylesville Fire District and there are thirty-five (35) employees and one firehouse in the Fire District. The petitioner represents that given the small size of the Fire District, an alternate chain of command would not be feasible if the Fire Chief’s son were hired. 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). In February of 2007, the Commission adopted Regulation 36-14-5004, which contains specific regulations aimed at curbing nepotism. Pursuant to Commission Regulation 36-14-5004(b)(1), a public official 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, a public official 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 36-14-5004(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. We note that in this case, given that the Fire Chief is the highest ranking member in the Fire District, all other employees are his subordinates. Accordingly, although he may recuse from all matters concerning his son, it is not feasible for all of his subordinates (every Fire District employee) to similarly recuse. Moreover, based upon the petitioner’s representations that an alternate chain of command is, in fact, not feasible in the instant matter, neither the Fire Chief nor any of his subordinates would be allowed to supervise the son if he were hired as a firefighter. See A.O. 97-140 (opining that the nephew of the Chief of the North Smithfield Police Department could not serve as an officer of that department since no alternative chain of command is available). Compare A.O. 2007-29 (opining that the son of the Chief of the East Greenwich Police Department could be employed as a community service officer since the procedures and alternate chain of command fashioned by the Town effectively insulate the petitioner from decisions directly affecting his son); A.O. 2005-19 (opining that the Code of Ethics would not prohibit the Chief of Cranston Police Department 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); A.O. 2006-39 (opining that the son of the Chief of the North Providence Fire Department could apply for a position as a member of the North Providence Fire Department given that the petitioner would be retiring and would not be participating in any aspect of the application process for any candidate prior to his retirement). Accordingly, the Commission opines that the Code of Ethics prohibits the son of the Fire Chief from being employed as a firefighter in the Fire District, notwithstanding that the Fire Chief will not take part in the selection process, since no alternate chain of command exists to insulate the Fire Chief from apparent conflicts of interest. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions : 2007-29 2006-39 2005-19 GCA 1 Keywords : Family: public employment Family: supervision Nepotism