Advisory Opinion No. 96-4

Re: Louis J. Bitar

A. QUESTION PRESENTED

The Superintendent of the Tiverton Public Schools requests an advisory opinion as to whether he may appoint his daughter to a teaching position in the event that (a) she is chosen by a selection panel and (b) he recuses himself from the interview and selection process.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Superintendent of the Tiverton Public Schools may appoint his daughter to a teaching position, given the following particular facts: (a) R.I. Gen. Laws § 16-2-11 prohibits the Superintendent from delegating his appointing authority, (b) a panel selected by the Assistant to the Superintendent will be responsible for the interview and review process, (c) the Superintendent will recuse himself from the entire interview and selection process if his daughter is an applicant, and (d) the appointment, thus, would be ministerial in nature. In the event that his daughter is appointed to a teaching position, the Superintendent is further advised to recuse himself from future decisions relating specifically to his daughter.

C. DISCUSSION

1. Facts

The Petitioner serves as the Superintendent of the Tiverton Public Schools. The Tiverton School Department, due to a number of retirements, is anticipating hiring new teachers in the next two to three years. The Petitioner's daughter, who has served as a substitute teacher for the last three years, will apply for the permanent teaching positions when advertised.

Pursuant to R.I. Gen. Laws § 16-2-11, the Petitioner, as Superintendent of Schools, must appoint successful candidates to teaching positions. The Petitioner advises that a panel selected by Joseph R. Pavao, the Assistant to the Superintendent, will collect resumes, conduct interviews, and select candidates. The Petitioner further advises that he intends to recuse himself from the entire interview and selection process if his daughter is an applicant.

2. Analysis

At issue in this advisory opinion request is whether, assuming that she is a successful candidate after the interview and review process, the Petitioner may appoint his daughter to a teaching position if he otherwise recuses himself from the hiring process. Under the Code of Ethics, the Petitioner, as Superintendent of Schools, may not participate in any matter in which he has an interest, financial or otherwise, 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), 36-14-7(a).(1) Pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or a family member.

After considering this request, we conclude that the Petitioner will not violate the Code of Ethics if appoints his daughter to a teaching position. This conclusion is based on the Petitioner's representations that a) R.I. Gen. Laws § 16-2-11 prohibits him from delegating the Superintendent's appointing authority; b) a panel selected by the Assistant to the Superintendent will be responsible for the interview and review process; and c) he will recuse himself from the entire interview and selection process if his daughter is an applicant. Further, this conclusion is consistent with past advisory opinions which, notwithstanding a potential conflict, have permitted an official subject to the Code to participate if his or her actions would be ministerial in nature. See e.g., A.O. 95-45 (concluding that the Petitioner, the State Court Administrator, would not violate the Code if his wife sought or accepted a promotion to a position within the Family Court since the only interaction between the Petitioner's office and the Family Court concerning personnel matters was solely ministerial). Since the Petitioner's role is ministerial in nature, he neither has an interest in substantial conflict with his public duties nor will he act to impermissibly benefit a family member. See R.I. Gen. Laws §§ 36-14-5(a) and 5(d). In addition, in the event that his daughter is hired and appointed as a teacher, the Petitioner is advised to recuse himself from future decisions relating specifically to his daughter and follow the notice requirements as specified in R.I. Gen. Laws § 36-14-6.

Footnotes

(1) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

Keywords

Nepotism

Family: Public Employment