Advisory Opinion No. 2010-22 Rhode Island Ethics Commission Advisory Opinion No. 2010-22 Re: Douglas Axelsen, Chair QUESTION PRESENTED The Petitioner, Chair of the Board of Fire Commissioners of the East Greenwich Fire District, a municipal elected official, requests an advisory opinion on behalf of the Board of Commissioners regarding whether the Code of Ethics prohibits Peter F. Henrikson from being appointed to and serving in the position of Chief of the Fire District, given that his spouse is employed by the Fire District as Chief Administrative Clerk. RESPONSE It is the opinion of the Ethics Commission that the Code of Ethics does not prohibit Peter F. Henrikson from being appointed to, and serving as, the Chief of the East Greenwich Fire District, notwithstanding the fact that his spouse is employed by the District as Chief Administrative Clerk, given that the Chief Administrative Clerk responds and reports directly to the Board of Fire Commissioners, not the Fire Chief. The Petitioner is the Chair of the East Greenwich Fire District Board of Commissioners (“Board of Commissioners”). He states that the Board of Commissioners is asking for an advisory opinion regarding whether or not it would be a violation of the Code of Ethics for Peter F. Henrikson to be appointed to, and serve as, Chief of the East Greenwich Fire District, given that his spouse is currently the Chief Administrative Clerk for the Fire District. The Petitioner represents that pursuant to section 51 of the collective bargaining agreement (“CBA”) entered into by the local bargaining unit of the International Association of Fire Fighters (“Local 3328”) and the Fire District, which governs the conditions of employment and job duties of all employees of the District other than appointed officials, the Chief Administrative Clerk for the Fire District responds and reports directly to the Board of Commissioners, not the Fire Chief. He further states that in practice, the Chief Administrative Clerk works closely with the Treasurer of the Fire District, who supervises her on a daily basis and does any necessary performance evaluations, and who also reports directly to the Board of Commissioners and is appointed by that entity. Additionally, the Petitioner states that the Fire District Chief does not exercise authority, control, or supervision over the day-to-day functions of the Chief Administrative Clerk, nor does he have the power to hire or fire her. He further states that the Treasurer serves at the pleasure of the Board of Commissioners and is not subordinate to the Chief of the Fire District, and that, while the Treasurer works with the Chief, he reports directly to the Board of Fire Commissioners which alone has the power to hire and fire the Treasurer. The Petitioner states that, presently, Kristen Henrikson serves as the Chief Administrative Clerk and her husband, Peter F. Henrikson, serves as the Deputy Fire Chief. The current Chief of the Fire District is John McKenna, who has publically announced his retirement, which will become effective July 1, 2010. The Deputy Chief is now an applicant for the position of Fire Chief. Under this set of facts, the Board of Fire Commissioners requests an advisory opinion regarding whether Peter F. Henrikson is prohibited by the Code of Ethics from serving in the position of Fire Chief of the East Greenwich Fire District, given that his spouse currently serves as Chief Administrative Clerk in the same fire district. 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). 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 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). Finally, subsection (b)(4) of Regulation 5004 prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within the official’s family. In the past, the Commission has approved alternate chains of command in which the supervising family member is sufficiently insulated from all action involving the supervision, discipline and evaluation of their subordinate family member. See A.O. 2009-34 (opining that the Chief of the West Warwick Fire Department was not prohibited from serving in that position if his son-in-law was a successful candidate for a firefighter position within the same department, provided that certain procedures are followed so that the Petitioner was removed from personnel decisions or other matters that particularly affect his family member, given that the alternate chain of command proposed by the Petitioner effectively insulates him from decisions directly affecting his son-in-law); A.O. 2009-26 (opining that the Deputy Chief of the Valley Falls Fire Department was not prohibited 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 given that the alternate chain of command proposed by the Petitioner effectively insulates him from decisions directly affecting his nephew); 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). But see A.O. 2008-54 (opining that the Code of Ethics prohibits the son of the Saylesville 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). In this set of facts, however, it is not necessary to create an alternate chain of command, given that the Chief Administrative Clerk is neither supervised by, nor reports to, the Fire Chief, but rather, is supervised daily by the Treasurer, who himself reports directly to the Board of Commissioners and is not himself a subordinate of the Fire Chief. Accordingly, it is the opinion of the Ethics Commission that Peter F. Henrikson is not prohibited by the Code of Ethics from being appointed to the position of Chief of the Fire District, notwithstanding the fact that his spouse serves as the Chief Administrative Clerk, given that he will not be supervising, evaluating, promoting, or disciplining her, but rather, the Treasurer, who is not the Chief’s subordinate, will be doing so, in conjunction with the Board of Commissioners. However, if Peter F. Henrikson is selected to serve as Fire Chief of the East Greenwich Fire District, he would be prohibited from participating in collective bargaining contract negotiations with Local 3328, pursuant to Regulation 36-14-5004(b)(4)(a), given that his spouse is a member of that collective bargaining unit. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2009-24 A.O. 2009-26 A.O. 2008-54 A.O. 2007-29 A.O. 2005-19 Keywords: Family: Supervision Nepotism