Advisory Opinion No. 2009-26 Rhode Island Ethics Commission Advisory Opinion No. 2009-26 Re: James T. Conway, Jr. QUESTION PRESENTED The Petitioner, Deputy Chief of the Valley Falls Fire Department, a municipal employee position, requests an advisory opinion as to what limitations the Code of Ethics places upon him in his capacity as Deputy Chief given that his nephew is a firefighter within the same department. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, Deputy Chief of the Valley Falls Fire Department, a municipal employee position, from serving in that position while his nephew simultaneously serves as a firefighter within the same department, provided that certain procedures are followed so that the Petitioner is removed from personnel decisions or other matters that particularly affect his family member. As is explained below, we find that the procedures and alternate chain of command proposed by the Petitioner effectively insulate him from decisions directly affecting his nephew. The Petitioner is the Deputy Chief of the Valley Falls Fire Department (“Department”). He states that his nephew[1] is employed by the Department as a firefighter. The Petitioner informed Ethics Commission Staff, in a subsequent communication, that his nephew became a volunteer firefighter in 1990 and began employment as a full-time, paid firefighter in 1996. The Petitioner advises that while he does not directly supervise his nephew, he does fall within the Petitioner’s chain of command when his nephew’s Lieutenant is unavailable or when an issue arises which requires the Petitioner’s involvement. The Petitioner, in further communication with Commission Staff, also informed of the necessity of supervising his nephew during the course of fighting fires or other emergency situations. The Petitioner represents that he has arranged, with the consent of the Fire Chief and Chairman of the Board of Fire Commissioners (“Chairman”), for an alternate chain of command which will insulate him from most supervisory responsibilities or other involvement concerning his nephew. Specifically, the Petitioner represents that he will completely remove himself from the chain of command and recuse on any matter involving his nephew; instead, the Fire Chief will replace him as next in line in the chain of command. The Petitioner further represents that in cases where the Fire Chief would be unavailable, the Chairman would be the Fire Chief’s designee for purposes of taking any supervisory action or making any decision that would be necessary in the Fire Chief’s absence. The Petitioner represents that the Fire Chief and the Chairman have explicitly agreed to this proposed chain of command as described supra. Given these representations, the Petitioner asks whether these management procedures are sufficient under the Code of Ethics. 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). Commission Regulation 36-14-5004 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 “any person within his or her family” 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 any person within his or her family, nor may he delegate such tasks to a subordinate. See Commission Regulation 36-14-5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes nephew and nephew-in-law. See Commission Regulation 36-14-5004(a)(2). In a series of advisory opinions somewhat analogous to the instant question, though issued prior to the enactment of Commission Regulation 5004,[2] the Commission considered whether particular public officials or employees would be able to work within the chain of command at the same public agency or entity as other family members. In those opinions, 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 or her family member. In advisory Opinion 95-71, the Commission recognized that the practicality of recusing on all matters impacting a family member may pose a problem since the existing structure of a department may necessarily place the family member within the same chain of organizational command. Nevertheless, the Commission suggested that agencies could fashion an alternate chain of command to insulate the public official from involvement in employment or personnel decisions affecting his family member. See 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 in the Department 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. 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). Compare A.O. 2008-54 (opining that the son of the Fire Chief was prohibited from being employed by the Fire District, notwithstanding that the Fire Chief would not take part in the selection process, since no alternative chain of command existed to insulate the Fire Chief from apparent conflicts of interest). After considering the Petitioner’s representations and the proposed management procedures to be implemented by the Department, and considering our past advisory opinions and the provisions of the Code of Ethics including Commission Regulation 36-14-5004, 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. Further, during emergency situations, such as fighting fires, in which incident specific supervision of his nephew is unavoidable, the Commission finds that, in this very discrete and particular circumstance, a violation of the Code of Ethics will not exist. The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise in non-emergency situations 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) Commission Regulation 36-14-5004 Related Advisory Opinions : 2007-29 2006-39 2005-19 Keywords : Family: public employment Family: supervision Nepotism [1] The Petitioner informs that Troy Papineau is the son of his wife’s brother and refers to him as his “nephew-in-law.” However, Black’s Law Dictionary defines “nephew” as “[t]he son of one’s brother or sister, or one’s brother-in-law or sister-in-law.” Black’s Law Dictionary 1039 (6th ed. 1990). The American Heritage Dictionary defines “nephew” as “[a] son of one’s brother or sister or the brother or sister of one’s spouse.” The American Heritage Dictionary of the English Language 1212 (3d ed. 1996). Consistent with these definitions, the Commission will refer Mr. Papineau as the nephew of the Petitioner. [2] Commission Regulation 36-14-5004 was adopted by the Commission in February of 2007.