Advisory Opinion No. 2010-21 Rhode Island Ethics Commission Advisory Opinion No. 2010-21 Re: Angel Marie DesMarais QUESTION PRESENTED The Petitioner, District Clerk for the Manville Fire District, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from serving as District Clerk, given that her spouse currently serves as Deputy Chief of the Manville Fire Department. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, District Clerk for the Manville Fire District, a municipal elected position, is not prohibited by the Code of Ethics from serving as District Clerk, notwithstanding the fact that her spouse currently serves as Deputy Chief of the Manville Fire Department, provided that she removes herself from participation in any matter which may result in a financial impact to her spouse by reason of her official activity. The Petitioner is the District Clerk for the Manville Fire District. She states that, pursuant to the Fire District Charter, Article III, § 3, her duties include taking the minutes for the Manville Fire District Board of Wardens (“Board of Wardens”) meetings, countersigning bonds issued by the District, and giving notice of Board of Wardens meetings, pursuant to the Open Meetings Act, R.I. Gen. Laws § 42-46-1, et seq. She states that she does not participate in discussion and voting on any matters coming before the Board of Wardens, given that she is not a voting member of that entity. She represents that currently her spouse, Danny DesMarais, is the Deputy Fire Chief of the Manville Fire Department. She states that she has no supervisory authority over her spouse, and does not exercise any decision-making authority whatsoever that could result in a financial impact to her spouse. Finally, she states that the only time her spouse appears before the Board of Wardens is if the Fire Chief is unavailable to attend and her spouse, as Deputy Fire Chief, appears in order to read the Fire Chief’s report. Given this set of facts, the Petitioner requests an advisory opinion regarding whether the Code prohibits her from serving as District Clerk, notwithstanding the fact that her husband serves as Deputy Fire Chief. 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 her 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 she or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her immediate family. See R.I. Gen. Laws § 36-14-5(d). Most pertinent to this Petitioner’s set of facts is Commission Regulation 36-14-5004, regarding nepotism. Pursuant to Commission Regulation 36-14-5004(b)(1), a public official may not participate in any matter as part of her 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 she delegate such tasks to a subordinate. It is the opinion of the Ethics Commission that the Petitioner is not prohibited from serving as District Clerk while her husband serves as Deputy Fire Chief, based on the Petitioner’s representations as to the limited nature of her duties as District Clerk, and the fact that she has no supervisory authority over her spouse, nor does she exercise any decision-making as Clerk that has the potential to financially impact her spouse. See A.O. 2004-32 (opining that Code of Ethics does not prohibit the Petitioner from serving as the Tax Collector for the Washington Fire District, notwithstanding the fact that her husband is a firefighter in the Fire District); A.O. 2004-21 (opining that the Petitioner may serve on the Nasonville Fire District Operating Committee notwithstanding fact that his father is Chief of the Nasonville Fire Department); A.O. 2004-14 (opining that a member of the Tiogue Fire District Board may continue to serve in that capacity notwithstanding the fact that her spouse is employed as a firefighter in that District). If the Petitioner’s duties as Clerk should expand or change in such a way that there is the potential for her official actions to financially impact her spouse, she is encouraged to seek further advice from this Commission. Finally, we note that the Petitioner is advised that this opinion only addresses the application of the Code of Ethics and does not address whether any other statutes, rulings, regulations, charters, ordinances or policies prohibit or regulate the represented activities. Code Citations: 36-14-5(a) 36-14-7(a) 36-14-5(d) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2004-32 A.O. 2004-21 A.O. 2004-14 Keywords: Nepotism