Advisory Opinion No. 2010-40 Rhode Island Ethics Commission Advisory Opinion No. 2010-40 Re: Peter A. Adam QUESTION PRESENTED The Petitioner, Chief of the Manville Fire Department, a municipal appointed position, requests an advisory opinion as to what limitations the Code of Ethics places upon him in his capacity as Chief given that his son 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, Chief of the Manville Fire Department, a municipal appointed position, from serving in that position while his son 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 son. The Petitioner is the Chief of the Manville Fire Department (“Department”) and he informs that his son is also employed by the Department as a firefighter. He advises that although there are three lieutenants, one captain and a deputy chief in between himself and his son, the Petitioner is nevertheless at the highest level of the chain of command for the Department. The Petitioner further advises that as part of his administrative duties, he is responsible for issuing work schedules to all personnel of the Department. The Petitioner represents that he has arranged, with the consent of the Chairman of the Board of Fire Wardens (“Chairman”), for an alternate chain of command which will insulate him from most supervisory responsibilities or other involvement concerning his son. The Petitioner represents that he will completely remove himself from the chain of command and recuse on any matter involving his son. Moreover, the Chairman has explicitly agreed to become the designated supervisor regarding all administrative matters involving the Petitioner’s son, such as the scheduling of work shifts and disciplinary actions. 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 “son.” 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,[1] 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, in some agencies, 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 was proposed or existed to insulate the Fire Chief from apparent conflicts of interest). More recently, in Advisory Opinion 2009-26, the Commission opined that the Code of Ethics did not prohibit the Deputy Chief of the Valley Falls Fire Department from serving in that position while his nephew simultaneously served as a firefighter within the same department since the recusal procedures and alternate chain of command structure proposed by the Deputy Chief, whereby the Fire Chief replaced him as next in line in the chain of command, and in the Fire Chief’s absence, the Chairman of the Board of Fire Commissioners became the Fire Chief’s designee for purposes of any supervisory action, were reasonable and sufficient to insulate him from apparent conflicts of interest. Similarly, in the instant matter, 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 son 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: 2009-26 2007-29 2006-39 2005-19 Keywords: Family: public employment Family: supervision Nepotism