Advisory Opinion No. 2008-55 Rhode Island Ethics Commission Advisory Opinion No. 2008-55 Re: Frank Annunziato & Anne Marie Coleman QUESTION PRESENTED: The Petitioners, the Assistant Vice President for Human Resources and the Executive Director of University Professors for the University of Rhode Island, state employee positions, jointly request an advisory opinion as to whether university faculty members may participate in the peer evaluation process, a part of the Annual Review process which is the basis for promotion and tenure, when the faculty member under review is a family or household member, as defined in Commission Regulation 5004. RESPONSE: It is the opinion of the Ethics Commission that University of Rhode Island faculty members are prohibited from participating in the peer evaluation process, a part of the Annual Review process which is the basis for promotion and tenure, when the faculty member under review is a family or household member as defined in Commission Regulation 5004. The Petitioners, the Assistant Vice President for Human Resources and the Executive Director of University Professors for the University of Rhode Island (“URI”), jointly request an advisory opinion as to whether university faculty are prohibited by the Code of Ethics from participating in the collegial peer review process, as outlined in the collective bargaining agreement (“CBA”) between the Rhode Island Board of Governors for Higher Education (“Board of Governors”) and the American Association of University Professors (“AAUP”), when the faculty member under review is a family or household member of the peer faculty member conducting the evaluation, as defined in Commission Regulation 5004. The Petitioners represent that for years, the CBA between the Board of Governors and the AAUP has permitted all faculty members to participate in the collegial peer review process and they cite to Article 15.7 of the CBA which provides in pertinent part that “[n]o method of department peer evaluation may deny any faculty member the right to submit a written evaluation of any or all faculty which shall be included in the material forwarded to the Dean, with the chairperson’s written evaluation.” Agreement Between the R.I. Board of Governors and the URI Chapter AAUP, effective July 1, 2007, to June 30, 2010, (hereinafter CBA), Article 15.7. Article 15.8.2 of the CBA further states that the Departmental Chairperson, in preparing his or her written evaluation of any given faculty member, “shall give full consideration to all opinions and evaluations obtained by consultation with the department faculty” and that when “he/she submits his/her evaluations to the Dean he/she shall append a detailed description of the department’s consultation process and such peer evaluations as may be utilized under Section 15.7.” The Petitioners represent that the peer evaluation is a part of the Annual Review process which is the basis for promotion and tenure; indeed, Article 15.2 of the CBA states that the “information accumulated in the Annual Review shall provide the basis upon which each faculty member is recommended by the department chairperson for retention in rank, promotion or award of tenure. The information may also be a basis for termination or non-renewal.” The Petitioners state that one of the colleges at URI, the College of the Environmental and Life Sciences (“CELS”), employs married couples in several of its departments. The Petitioners state that the Dean of CELS has urged his departments to adopt language into their formal annual review process which would prohibit faculty in those departments from evaluating family or household members for purposes of the annual review, promotion, or tenure pursuant to Commission Regulation 5004. In their advisory opinion request letter, the Petitioners state that the peer review evaluations themselves bring no increase in salary, title or prestige to the faculty member under review, but rather, that the departmental chair must assess all such evaluations and then exercise his/her independent judgment in making a recommendation to the Dean. It is at this juncture that the Petitioners have jointly requested an advisory opinion asking whether faculty are prohibited by the Code of Ethics from participating in this departmental peer evaluation process when the faculty member under review is a family or household member pursuant to Commission Regulation 5004. Commission Regulation 36-14-5004, entitled “Nepotism,” specifically prohibits persons subject to the Code of Ethics from participating 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. Commission Regulation 5004(b)(1). Regulation 5004 further provides that no person subject to the Code “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 . . . .” Commission Regulation 5004(b)(2)(A) (emphasis added). Application of the above cited regulation hinges upon the definitions provided in Commission Regulation 36-14-5004(a), which provides: (1) "Household member" means a person having legal residence or living in a public official's or public employee's place of residence. (2) "Any person within his or her family" means, in addition to any other definition, any person who is related to any public official or public employee, whether by blood, marriage or adoption, as any of the following: spouse, father, step-father, father-in-law, mother, step-mother, mother-in-law, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, grandfather, step-grandfather, grandfather-in-law, grandmother, step-grandmother, grandmother-in-law, grandson, step-grandson, grandson-in-law, granddaughter, step-granddaughter, granddaughter-in-law, uncle, step-uncle, uncle-in-law, aunt, step-aunt, aunt-in-law, niece, step-niece, niece-in-law, nephew, step-nephew, nephew-in-law, first cousin, step-first cousin and first-cousin-in-law. The language of Commission Regulation 5004(b)(2)(A) is concise and makes it very clear that a state employee may not participate in the evaluation of any person, as a part of his or her public duties, when the person being evaluated is a person within the employee’s family or is a household member. While the Petitioners aver that the peer evaluations in question themselves “bring no increase in salary, title, or prestige,” it is abundantly clear that the peer evaluations are a required part of the “Annual Review” process which “shall provide the basis upon which each faculty member is recommended by the department chairperson for retention in rank, promotion, or award of tenure.” CBA, Article 15.2. Furthermore, the prohibitions enumerated in Commission Regulation 5004(b)(2)(A) are absolute and do not require a direct financial impact to have effect and may be waived only “in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion.” Thus, it is the opinion of the Ethics Commission that URI faculty members may not participate in the peer evaluation process as outlined in the Agreement Between the Rhode Island Board of Governors and the URI Chapter of the American Association of University Professors when the person under review is a family member or household member pursuant to Commission Regulation 5004. Code Citations: Commission Regulation 5004 Keywords: Family: Public Employment Nepotism