Advisory Opinion No. 99-131

Re: Town of West Warwick

QUESTION PRESENTED

The petitioner, the Town of West Warwick, through its Solicitor requests an advisory opinion as to whether a person may be selected and serve as the Chief of the Fire Department in light of the fact that the candidate's sister already works in the Department as secretary and assistant to the Chief.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not per se prohibit a person from being selected and serving as Chief of the Fire Department while his sister is employed in the Department as secretary and assistant to the Chief. The law does prohibit, however, any person from serving as supervisor to a family member or business associate. 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 sisters 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 existing structure of the Fire Department, the Chief necessarily would be in a supervisory position vis a vis his sister. Therefore, assuming the candidate in question is selected to serve as Chief of the Fire Department, it would be incumbent upon the Department and the Town to structure an alternative chain of command that would insulate the Chief from supervisory responsibilities regarding his sister. Failure to do so would undoubtedly result in the candidate in question committing repeated violations of the law. In this regard, the solicitor and town manager represent that no alternative chain of command may be available. If that is the case, then the prospective Fire Chief and his sister would be unable to serve in those respective positions without the former continually running afoul of the Code of Ethics.

The solicitor advises that the Town of West Warwick is in the process of hiring a Fire Chief. The Town is considering promoting a current member of the Fire Department to the position of Chief. However, that person’s sister serves as the Fire Chief’s secretary and has been in that position for many years. She is the only secretarial support within the Department and serves as the Chief’s personal secretary/administrative assistant. While the Fire Chief does not have control over the secretary’s salary increases as she is a union member, he does exercise supervisory control over her working conditions, disciplinary matters, and matters relating to her job performance. Finally, the town manager through the solicitor advises that no alternative chain of command is available such that disciplinary and other personnel matters concerning the secretary could be handled by someone with authority over the Fire Chief, such as, for instance, the Town Manager.

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 would occur if the petitioner had reason to believe or expect that (s)he or any family member or business associate, or any business by which (s)he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, (s)he may not use his office for financial gain for her/himself or any member of his/her 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 to sisters, whether by blood, marriage or adoption.

In General Commission Advisory (GCA) No. 1, the Commission applied and interpreted these provisions to specific nepotism concerns. In that opinion, the Commission recognized that the cited provisions would prevent a public official or employee from participating in personnel decisions regarding another family member. Specifically, the Commission recognized in GCA No. 1 that, in addition to hiring decisions, the public official or employee would be prohibited from having any significant involvement in decisions concerning reappointment, promotion, or reclassification of a family member. 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. Additionally, in GCA No. 1, the Commission found that, not only is the public official or employee prohibited from participating in personnel decisions affecting his family member, he is also prohibited from delegating this authority to a subordinate since "the official is in a position to choose and influence the person most likely to favor [his] family member."

In a series of advisory opinions, the Commission has considered whether, in light of the relevant Code provisions and GCA 1, particular public officials or employees could work for the same public agency or entity as other family members. The Commission has declined to adopt a blanket or absolute prohibition against one family member serving in a department or agency in which another family member has supervisory responsibilities. Rather, the Commission generally has taken the position that a public official or employee serving in a supervisory capacity will satisfy the requirements of the State’s Code of Ethics by recusing from participation in matters directly affecting his/her family member. In Advisory Opinion 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. Also, recusal in and of itself may not be sufficient because the existing structure of a department necessarily places the family members within the same chain of organizational command. In light of these practical concerns, the Commission recognized that another alternative would be to establish a system within the department or agency that would serve the purpose of insulating the official from all issues directly affecting his family member. To accomplish this end, a procedure must be fashioned so that the public official has no involvement in employment or personnel decisions affecting his/her family member. See A.O. 95-71 (opining that the Code of Ethics does not prohibit the Rhode Island Department of Transportation from promoting an individual to the position of Assistant Director of Transportation (Real Estate) where a direct subordinate of her husband would be her immediate supervisor if it established an adequate "Chinese Wall").

Previously, the Commission has considered whether a department or agency had established sufficient procedures to insulate a public official from decisions affecting a member of his family. We have found that where administrators had devised sufficient hiring and supervisory procedures to insulate the interested public officials from employment decisions affecting their family member, the Code of Ethics would not prohibit the Department from simultaneously employing both family members. See A.O. 98-115 (concluding that URI could hire the basketball coach’s son since all supervision of the son would be handled by the Athletic Director), A.O. 98-119 (advising that Hopkinton police officer could be promoted to sergeant although brother worked in same department given that the brother would be in the chain of command of a different sergeant) A.O. 96-109 (advising that the Cranston’s Director of Administration could accept appointment to that position where his spouse serves as the City's Purchasing Agent if he does not participate in the day-to-day supervision of his wife and all personnel issues affecting his spouse are handled by the Mayor or an official who does not report to the petitioner as Director of Administration); A.O. 96-118 (concluding that the Code of Ethics did not prohibit the Secretary of State from hiring and employing the mother of his Chief of Staff since the petitioner had devised both hiring and supervisory procedures that insulate the Chief of Staff from employment decisions that affected his mother).

We have concluded, however, that a family member could not be hired by a public entity if there were no alternative chain of command that would insulate the public official or employee from employment decisions affecting his family member. See A.O. 97-140 (opining that nephew of the North Smithfield Police Chief could not serve as an officer in the North Smithfield Police Department while his uncle served as Chief since, given the structure of the Police Department, there was no alternative chain of command that would insulate the Chief completely from supervisory responsibilities regarding his nephew); A.O. 97-6 (concluding that the Mayor of North Providence could not hire his cousin to serve as his Director of Personnel, a position that reported directly to the Mayor).

After considering the relevant provisions of the Code of Ethics and past advisory opinions, we conclude here that the Rhode Island Code of Ethics would prohibit a Town of West Warwick Fire Chief from acting in a supervisory capacity with regard to his sister, the Fire Chief’s secretary. In reaching that conclusion we rely on the representations of the solicitor and town manager that no alternative chain of command is available that will insulate the Chief from supervisory responsibilities relating to his sister. Therefore, the Fire Chief and his sister would be unable to serve in those respective positions as currently structured without the former continually running afoul of the Code of Ethics.

Code Citations:

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

Related Advisory Opinions:

GCA 1
99-47
98-119
98-115
97-140
97-6
96-118
96-110
96-109
96-16
95-71
95-45
92-56
91-32

Keywords:

Family: public employment
Family: supervision
Nepotism