Advisory Opinion No. 95-46

Re: David M. Powers

A. QUESTION PRESENTED

A member of the Greenville Water District's Board of Directors requests an advisory opinion as to whether he would be in violation of the Code of Ethics were his son to seek or accept employment as Superintendent of the Greenville Water District.

B. SUMMARY

A member of the Greenville Water District's Board of Directors would not violate the Code of Ethics in the event his son were to be employed as Superintendent of the Greenville Water District provided that the following precautions are taken by petitioner: (a) he should exercise notice and recusal as to any and all aspects of the hiring process for the position of Superintendent of the Greenville Water District, including establishing criteria for employment, and (b) he should not attempt to influence any member of the Board of Directors of the Greenville Water District in the selection of a Superintendent. The Commission further cautions the petitioner that, if his son is employed as Superintendent, circumstances may warrant further recusals.

C. DISCUSSION

A. Facts

David M. Powers, a member of the Board of Directors of the Greenville Water District, advises that his son has applied for the position of Superintendent of the Greenville Water District. Mr. Powers also advises that upon being apprised of his son's application, he notified the chairman of said Board that he would recuse himself from the hiring process for said position in light of his son's application. The petitioner also expressed his intention to resign as a member of the Greenville Water District's Board of Directors should his son be hired as Superintendent.

B. Analysis

This advisory opinion request raises the issue of whether a municipal board may accept an application from and offer employment to the son of a board member without bringing said board member into violation of the Code of Ethics, specifically R.I. Gen. Laws §36-14-5(d), which prohibits a person subject to the Code from using his or her public office or confidential information received in the course of official duties to obtain financial gain for a family member. Other relevant provisions of the Ethics Code include prohibitions against having an interest in substantial conflict with the proper discharge of one's official duties, pursuant to R.I. Gen. Laws § 36-15-5 (a), and representing another person before one's own agency, pursuant to R.I. Gen. Laws § 36-14-5(e)(2).

This Commission opines and concludes that Mr. Powers would not be in violation of the Code of Ethics were his son to seek or accept employment as the Superintendent of the Greenville Water District. In reaching this decision, the Commission relies on representations made by the petitioner that he will exercise notice and recusal pursuant to R.I. Gen. Laws § 36-14-6 when any matter related to his son or the hiring process for Superintendent should arise. In addition, Mr. Powers is cautioned against influencing or attempting to influence any member of the Board of Directors at any time before or during consideration of any application for said position. The Commission further cautions the petitioner that if his son is employed as Superintendent, circumstances may warrant further recusals. If such recusals become frequent, Mr. Powers should re-evaluate his situation and seek further advisory opinions. In rendering this decision, the Commission assumes that the Greenville Water District's Board of Directors ensured that public notice of this position opening was made widely available.

Our decision reflects past advisory opinions, including a General Commission Advisory Opinion, which have addressed the conflict of interest presented when a public official sits on a body responsible for making hiring decisions involving an immediate family member. For example, in one advisory opinion representing facts comparable to this request, the Commission opined that a member of the West Warwick Housing Authority would not be in violation of the Code of Ethics if her daughter were to apply for the position of Executive Director of the Authority provided that said member did not participate in establishing any criteria for the position and that she abstain from participation in any discussion or vote concerning her daughter or the hiring process [A.O. 85-92].

Keywords

Nepotism

Family: Public Employment