Advisory Opinion No. 99-147

Re: Marilyn Levin

QUESTION PRESENTED

The Executive Director of the Commission on the Deaf and Hard of Hearing (CDHH) requests an advisory opinion on behalf of the CDHH as to whether a conflict of interest would exist if an individual who is married to a CDHH staff member received an appointment as a member of the Commission.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Commission on the Deaf and Hard of Hearing (CDHH) may appoint a Commissioner who is also married to a CDHH staff person provided that the Commissioner recuses on matters pertaining to his spouse.

The Executive Director of the CDHH advises that the CDHH is in process of filling Commission vacancies and interviewing candidates. One of the candidates is married to a CDHH staff member. The petitioner represents that, if selected, the Commission member would not participate in any discussions regarding his spouse’s job performance or other personnel issues affecting his wife.

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).

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.

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 not prohibit the appointment of a Commission member to the CDHH even though his spouse is a CDHH staff member so long as he recuses from all personnel matters relating to his spouse. We also caution the petitioner that recusal could be necessary in other instances such as those affecting his spouse’s supervisors. If such matters should arise, he should either recuse or seek additional guidance from the Ethics Commission.

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

Nepotism