Advisory Opinion No. 98-145

Re: Thomas J. Daniels

A. QUESTION PRESENTED

The Petitioner, Chairperson of the Town of Smithfield Town Manager Search Committee, a municipal appointed position, requests an advisory opinion on behalf of himself and other members of the Committee as to whether the Committee may consider an application from a candidate for the Town Manager position who himself has been a member of the Search Committee until just recently.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chairperson of the Town of Smithfield Town Manager Search Committee, a municipal appointed position, and other members of the Search Committee may not consider an application from a candidate for the Town Manager position who himself has been a member of the Search Committee until just recently. While the Town Council, the body that appointed the members of the Search Committee, may choose to abandon the process that has been ongoing for the selection of a new Town Manager, consideration by the Search Committee of a candidate who until recently was himself a member of the Committee would implicate a number of provisions of the Code of Ethics and should be avoided.

C. DISCUSSION

1.Facts

In June of this year, the Smithfield Town Council created and appointed members to a Search Committee that was given responsibility for assisting with the recruitment process for a new Smithfield Town Manager. The Search Committee first met on June 25, 1998, and has met at least four additional times since then. The Search Committee developed and agreed upon a job description for the Town Manager position, arranged for advertisements to be placed in local publications, reviewed resumes and applications received in response to the advertisements, and interviewed several candidates. After interviewing candidates some were eliminated from consideration, while others were qualified by the Search Committee for further consideration. Except for the initial meeting of the Search Committee, its meetings were closed to the public; including all of the candidate interviews. No recommendations have been made by the Search Committee to the Town Council.

The Search Committee is composed of four local residents and, until recently, had a fifth member who had been a Town Manager in another Rhode Island community. The Chair of the Search Committee described this fifth member as a non-voting member who served the Search Committee in an advisory only capacity. After attending and participating in several meetings, including interviews of candidates, this fifth member of the Search Committee resigned and has indicated that he wishes to be considered as a candidate for the Town Manager position.

2. Analysis

The Code of Ethics provides that a public official 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/her duties in the public interest. A substantial conflict of interest occurs if the public official has reason to believe or expect that he/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. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that a public official shall not accept other employment which will either impair his/her independence of judgment as to his/her official duties or induce him/her to disclose confidential information acquired by her in the course of and by reason of her official duties. See R.I. Gen. Laws § 36-14-5(b). An official or employee shall not use his/her public office or confidential information received through that public office to obtain financial gain, for him or herself, a business associate, or an employer. See R.I. Gen. Laws § 36-14-5(d).

The Search Committee originally consisted of five members. Whether or not the now former member of the Committee, would-be candidate for the Town Manager position, was a voting member of the Committee or not is not determinative here. He clearly participated in substantive discussions of the Committee involving the job description and requirements for the position, and attended and participated in executive session, or closed, meetings of the Search Committee involving both discussions involving the position and interviews of candidates for the position. Given the requirements of the Code of Ethics, it does not seem possible for this former member of the Search Committee to be a candidate before that same Committee without impermissibly tainting the selection process.

This does not mean that the former member of the Search Committee may not be a candidate for the Town Manager position. But he may not be a candidate, consistent with the provisions of the Code of Ethics referenced above, if the Search Committee of which he was a member has any involvement in the selection process for the Town Manager position. In other words, the Search Committee as presently constituted would have to be removed from the selection process for the former member and for any candidate with whom he would be competing for the position. Whether or not that is a viable alternative is a decision for the Town Council, which designated the Search Committee in the first place and continues to have final authority for the hiring decision.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Keywords:

Prospective employment