Advisory Opinion No. 99-47

Re: A. Ralph Mollis

QUESTION PRESENTED

The Town Solicitor for the Town of North Providence requests an advisory opinion on behalf of the petitioner, the Mayor of North Providence, a municipal elected position, as to whether he may approve the transfer of a Department of Public Works employee to the position of Assistant Mechanic within the Fire Department, given that the employee is his first cousin.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the Mayor of North Providence, a municipal elected position, from approving the transfer of his first cousin, a Department of Public Works employee, to the position of Assistant Mechanic within the Fire Department, given that 1) he has no involvement in the selection/hiring process; 2) he does not directly supervise the Assistant Mechanic or his immediate superior; and 3) any approval by the petitioner would be ministerial in nature.

The petitioner advises that Thomas Porcelli, his first cousin, has been an employee of the North Providence Department of Public Works since February of 1988. He indicates that a vacancy exists for the Fire Department’s Assistant Mechanic. In the event that the Fire Chief finds Mr. Porcelli qualified and wishes to employ him, the petitioner must approve the transfer. He represents that the Assistant Mechanic is supervised directly by the Mechanic, and in turn by the Fire Chief, who reports directly to the Mayor.

The Code of Ethics provides that a public official may 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 exists if the official has reason to believe or expect that he or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, a public official may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his immediate family. See R.I. Gen. Laws § 36-14-5(d). Commission Regulation 36-14-5005 extends the relevant prohibitions set forth Section 5 to first cousins.

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 decisions, 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.

In an opinion previously issued to the petitioner, the Commission concluded that he could not hire his cousin to serve as Director of Personnel since that position reported directly to the Mayor. See A.O. 97-6. However, here the position at issue does not report directly to the Mayor, nor does the Mayor exercise any direct supervisory control or responsibility over the Assistant Mechanic. The Assistant Mechanic reports directly to the Mechanic, who supervises him on a daily basis. In turn, the Mechanic reports to and is supervised by the Fire Chief, who is then answerable to the petitioner as Mayor. Accordingly, the Commission concludes that the petitioner does not have direct supervisory authority over the Assistant Mechanic and, therefore, that the prohibitions discussed above are not implicated here.

Further, the petitioner has no involvement in the selection/hiring process for the position of Assistant Mechanic. In the event that the Fire Chief wishes to employ Mr. Porcelli, the petitioner’s sole function would be to approve the transfer. Since such a 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. 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 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 his office and the Family Court concerning personnel matters was ministerial in nature).

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
Regulation 5005

Related Advisory Opinions:

GCA 1
98-119
98-115
97-140
97-6
96-118
96-110
96-109
96-4
95-71
95-46
95-45
92-56

Keywords:

Family: Public Employment
Family: Supervision
Nepotism