Advisory Opinion No. 2013-13

Re: Richard A. Monteiro

QUESTION PRESENTED

The Petitioner, an alternate member of the Woonsocket Personnel Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in matters before the Personnel Board that involve members of Woonsocket City Employees Local 670, Council 94, AFSCME, AFL-CIO, given that his daughter is a police dispatcher in Woonsocket and a member of that local bargaining unit.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an alternate member of the Woonsocket Personnel Board, a municipal appointed position, is not prohibited by the Code of Ethics from participating in matters before the Personnel Board that involve members of Woonsocket City Employees Local 670, Council 94, AFSCME, AFL-CIO, notwithstanding that his daughter is a police dispatcher in Woonsocket and a member of that local bargaining unit. However, the Petitioner is required to recuse from any Personnel Board matters that would have a financial impact on his daughter or provide her with an employment advantage.

The Petitioner is an alternate member of the Woonsocket Personnel Board (“Personnel Board”), having been appointed in June of 2011. In his private capacity, he is employed in a management position in private industry and is not a member of a union. The Personnel Board consists of three (3) members and (2) alternate members, all appointed by the Mayor with the approval of the City Council. Woonsocket City Charter, Ch. IX, sec. 5. He states that presently there are two (2) vacant full member positions and he has asked the Mayor to appoint him to fill one of those vacancies. He further informs that the Mayor supports his appointment, provided that he receives a favorable advisory opinion from the Ethics Commission.

The Petitioner states that the majority of the matters before the Personnel Board during his tenure have been grievance hearings and the certification of applicants for new positions or advancements. More generally, the duties of the Personnel Board include: (a) certifying that persons appointed to positions in the classified service actually possess the qualifications required by the classification plan; (b) recommending pay scales and performing such related services as the council may require; (c) advising and assisting the personnel director on problems concerning personnel administration; (d) conducting grievance hearings; and (e) certifying to the personnel director that a person is eligible for appointment. See Woonsocket City Charter, Ch. IX, § 7; Woonsocket City Code, Appendix A Personnel Ordinance, § 3.4.

The Petitioner represents that during the past year he has fully participated in approximately twelve (12) grievance hearings involving members of Woonsocket City Employees Local 670, Council 94, AFSCME, AFL-CIO (“Local 670”). Local 670 is comprised of administrative, clerical and fiscal municipal employees and it has approximately 110 members working in a variety of positions. See Woonsocket City Code Appendix A, Personnel Ordinance, § 5.3 – List of classified positions in Local 670.

The Petitioner states that his daughter is employed, full-time as a Public Safety Telecommunications Clerk, more commonly referred to as a Police Dispatcher, in Woonsocket. He represents that his daughter is a member of Local 670, but she has no leadership position in the union and does not serve as an officer. He informs that when matters involving Local 670 came before the Personnel Board, he publically stated on the record that his daughter was a member of the union and asked if any of the parties objected to his participation. He states that in all cases, the parties never objected to his full participation.

At the present time, the Petitioner seeks advice as to whether his daughter’s membership in Local 670 would prevent him from participating in matters involving other Local 670 members before the Personnel Board.

Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” prohibits a person subject to the Code of Ethics from participating in any matter as part of his public duties if he “has reason to believe or expect that any person within his [] 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.” Regulation 5004(b)(1).

More specifically, Regulation 5004(b)(2)(A), entitled “Advocacy/Supervision regarding Family/Household Members,” provides:

(A) No person subject to the Code of Ethics 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 or over which he or she exercises fiscal or jurisdictional control, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion.

The Petitioner’s daughter is a “person within [the Petitioner’s] family” for purposes of applying the above nepotism provisions. Regulation 5004(a)(2).

The Personnel Board’s official actions, unlike the actions of the City Council negotiating with a local bargaining unit, do not generally impact all of the members of a particular local bargaining unit because most of the Personnel Board’s actions relate to individual union members who have filed a grievance or are seeking approval of their qualifications for a new position or promotion. In the present matter, the Petitioner would be required to recuse from a matter involving a member of Local 670 when there is a financial impact upon his daughter, for example, if she was a party to the grievance or was seeking approval of qualifications for a promotion or transfer.

Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in Personnel Board matters involving members of Local 670, provided that he recuses from any matters that may have a financial impact on his daughter or may provide her with an employment advantage. Notice of recusal must be filed with the Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

§ 36-14-6

Commission Regulation 36-14-5004

Keywords:

Family: Public Employment

Nepotism

Recusal