Advisory Opinion No. 99-135

Re: Peter Voccio

QUESTION PRESENTED

The petitioner, a Johnston School Committee member, a municipal elected official, requests an advisory opinion as to whether he may participate in a decision to grant his spouse, a School Department employee, leave without pay for a period not to exceed 30 days.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Johnston School Committee member, a municipal elected official, may not participate in a decision to grant leave without pay for a period not to exceed 30 days to his spouse, a School Department employee, given that the School Committee does have discretion over this matter.

The Code of Ethics provides that public officials and employees 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 their duties in the public interest. A substantial conflict of interest occurs if an official or employee has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Finally, an official or employee shall not use their public office or confidential information received through that public office to obtain financial gain, for themselves, a business associate, or an employer. See R.I. Gen. Laws § 36-14-5(d).

The petitioner states that the contract with the non-certified union provides that upon application to the employer (defined in the contract as the School Committee), an employee may be granted leave without pay for a period not to exceed 30 days. Application based on reasonable cause beyond 30 days will be granted or denied at the discretion of the employer. If an employee is granted leave without pay, in writing said employee shall be allowed to continue existing applicable fringe benefits at the prevailing rates with the employee being responsible for 100% of the cost payable to the Town of Johnston in advance on a monthly basis. The petitioner advises that he would recuse if his spouse, a clerk for 15 years, should make a request for leave of over 30 days.

As to leave without pay during the initial 30-day period, the School Committee appears to have discretion since the contract language states that “upon application to the Employer, an employee may be granted leave without pay for a period not to exceed thirty (30) days.” The petitioner has an interest in substantial conflict with his public duties if he participates in his spouse’s request for a 30-day leave.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

99-47

96-4

95-45

Keywords:

Discretionary Authority

Family: Public Employment

Nepotism