Advisory Opinion No. 97-140

Re: Steven E. Reynolds

A. QUESTION PRESENTED

The Petitioner, North Smithfield Police Chief, a municipal appointed position, requests an advisory opinion as to whether his nephew may apply and/or be hired as a North Smithfield Police Officer provided the Petitioner does not take part in the selection process.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the nephew of the Petitioner, North Smithfield Police Chief, a municipal appointed position, could not serve as an officer in the North Smithfield Police Department while his uncle, the Police Chief, continues to serve in such a supervisory position. Sections 5(a) and 7(a) of the Code of Ethics and General Commission Advisory 1 prohibit a public official from participating in matters which could result in financial gain to family members. Commission Regulation 36-14-5005 (Nepotism) includes nephews within the definition of family members. General Commission Advisory No. 1 and other advisory opinions have concluded that participation in personnel/supervision matters of a family member is prohibited conduct under the Code of Ethics. Given the structure of the Police Department and that the Police Chief has authority in all Police Department matters, the Petitioner would necessarily be in a supervisory position over his nephew. Should there be a potential alternative chain of command available that would insulate the Chief completely from supervisory responsibilities regarding his nephew, a violation of the Code of Ethics would not necessarily result. Here, the Petitioner represents that no alternative chain of command is available. Therefore, the nephew would be unable to serve under his uncle in the North Smithfield Police Department without the latter continually running afoul of the Code of Ethics.

C. DISCUSSION

1. Facts

The Petitioner, North Smithfield Police Chief, requests an advisory opinion as to whether his nephew may apply and/or be hired by the North Smithfield Police Department. The Petitioner has served as the North Smithfield Police Chief since 1995. In general, the Police Chief is involved directly in the selection of new officers. However, the Petitioner advises that he would remove himself from the selection process entirely if his nephew applied for an officer position. His nephew has not applied for a position with the North Smithfield Police Department in the past because of the familial relationship with the Chief.

2. Analysis

The Code of Ethics provides that a public official such as the Petitioner 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. A substantial conflict of interest would occur if the Petitioner had reason to believe or expect that she or any family member or business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, he may not use his office for financial gain for himself or any member of his immediate family. R.I. Gen. Laws § 36-14-5(d). Commission Regulation 35-14-5005 extends the relevant prohibitions set forth in R.I. Gen. Laws § 36-14-5 nephews, whether by blood, marriage or adoption.

As discussed in General Commission Advisory (GCA) No. 1, these Code provisions prohibit participation by one family member in personnel decisions regarding another. GCA No.1 also provides that in addition to hiring, any significant involvement in reappointment, promotion, or reclassification of a family member is prohibited under the Code of Ethics. This necessarily includes job performance evaluations since they play a role in job retention, promotion, and other job-related benefits of financial interest to the employee. These evaluations, as a practical matter, are based on a supervisor's cumulative impression derived from his/her day-to-day supervision of the employee. Additionally, in GCA No. 1, the Commission found that a supervisor's authority could not be delegated to a subordinate since that person ultimately reports to the supervisor.

In a series of advisory opinions, the Commission has concluded that the familial relationship precluded a public official from exercising any authority over that employee and in one matter prevented that person from being hired. The Commission has generally taken the position that the public official in a supervisory capacity must recuse from matters directly affecting his/her family member. In A.O. 95-71, the Commission recognized that the practicality of achieving this objective may pose a problem since recusal on all relevant issues would require an individual from an unrelated Department, not under the public official's control, to make such decisions. Additionally, if the public official recuses on a routine or frequent basis, he may be in violation of Commission Regulation 36-14-5003. The Commission recognized that another alternative would be to establish a system within the Department that would serve the purpose of insulating the official from all issues directly affecting his family member. To accomplish this task, a "Chinese Wall" must be erected to successfully insulate the public official from the type of involvement that would fall within the Code's prohibitions. In a recent advisory opinion, the Commission concluded that such an alternate system to insulate the public official from matters affecting his spouse would not present a violation of the Code of Ethics (matters concerning Cranston Department of Administration's wife, the City's Purchasing Agent, would be handled by either the Mayor or an official who did not report to the Director of Administration, See A.O. 96-109). However, in A.O. 97-6, the Commission concluded that the Mayor of North Providence could not hire his cousin to serve as his Director of Personnel, reportable only to the Mayor.

In this matter, the central issue is that the Petitioner as Police Chief would have authority over his nephew or his immediate supervisor if the nephew is hired as an officer. In other advisory opinions, the Commission has found that a procedure by which the petitioner did not participate in any matter that directly affects his/her family member could prevent a violation of the Code of Ethics. However, those opinions and General Commission Advisory No. 1 require that such matters be handled by the public official's supervisor or someone over which he has no authority. Here, the situation is more similar to A.O. 97-6 in that such a solution is not feasible or practical since the Petitioner is the Police Chief and has authority over the entire Police Department. Therefore, it is the opinion of the Rhode Island Ethics Commission that the nephew of the Petitioner, North Smithfield Police Chief, a municipal appointed position, could not serve as an officer in the North Smithfield Police Department so long as his uncle, the Police Chief, continues to serve in that ultimate supervisory position.

Code Citations:

36-14-5(a)

36-14-7(a)

Commission Regulation 36-14-5005

Related Advisory Opinions:

GCA 1

97-6

96-110

96-109

96-16

95-71

92-56

91-32

Keywords:

Family: supervision

Nepotism