Advisory Opinion No. 95-71

Re: James Capaldi

A. QUESTION PRESENTED

Whether the Rhode Island Department of Transportation (RIDOT) may consider Lori A. Capaldi, Principal Real Estate Specialist and supervisor of the Liaison Unit in the Real Estate Division of RIDOT, for promotion to the position of Assistant Director of Transportation (Real Estate), where a direct subordinate of her husband, James R. Capaldi, PE, Chief Engineer of the Engineering Division of RIDOT, would be her immediate supervisor.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit RIDOT from considering Mrs. Capaldi for promotion to the position of Assistant Director of Transportation (Real Estate). In rendering this advisory opinion the Commission has relied on the petitioner's representations that neither Mr. Capaldi, nor his subordinate, Edmund T. Parker, Jr., PE, Chief Design Engineer, have been involved in any part of the selection process which directly affects Mrs. Capaldi. However, if such a promotion occurs, in order to avoid any appearance of impropriety, a "Chinese Wall"(1) must be fashioned so that there is no involvement by one spouse in personnel issues affecting the other.

C. DISCUSSION

1. Facts

Mr. Capaldi is responsible for overseeing several divisions in the Department, including the Real Estate section. RIDOT is currently recruiting to fill the position of Assistant Director of Transportation (Real Estate), utilizing an open competitive merit recruitment process.(2) The position is directly supervised by Mr. Parker, an immediate subordinate of Mr. Capaldi. A panel of five (5) professionals,(3) including Mr. Parker, was responsible for screening the candidates, and submitted a short list to the Director, William F. Bundy, for his review and final decision.

Mrs. Capaldi, who has worked in State service since 1978 and has progressively advanced through the ranks, applied for the vacancy. As liaison supervisor, Mrs. Capaldi currently reports to the Assistant Director of Transportation (Real Estate), the position for which she has applied. Mr. Parker recused himself from the panel's consideration of Mrs. Capaldi, after which the panel selected her as one of the six (6) finalists. If the Director selects Mrs. Capaldi for the position, the number of individuals between the Capaldis in a superior/ subordinate line administrative relationship would be decreased to only one, Mr. Parker.

2. Analysis

Under the Code of Ethics, Mr. Capaldi may not engage in any activity which is in substantial conflict with the proper discharge of his duties or employment. See R.I. Gen. Laws § 36-14-5(a). Also, he may not use his office for financial gain for himself or any member of his immediate family. See R.I. Gen. Laws § 36-14-5(d). As discussed in general Commission Advisory No. 1, these Code provisions prohibit participation by one family member in personnel decisions regarding another. Therefore, in order to avoid any conflict of interest, Mr. Capaldi would likely be required to strictly exercise the notice and recusal sections of the law if his wife were to become a member of a section over which he exercises supervisory authority. See R.I. Gen. Laws § 36-14-6. Utilization of the notice and recusal sections on a routine or frequent basis may, however, still result in a violation of the Code of Ethics. See Regulation 36-14-5003.

The core issue in this advisory request is whether, under the Code of Ethics, Mrs. Capaldi can be promoted to a position where her immediate supervisor is a direct subordinate of her husband. After considering the issue the Commission concludes that Mrs. Capaldi is not specifically excluded from accepting the position of Assistant Director (Real Estate). However, the Code prohibits Mr. Capaldi from participating in any matter which directly affects his wife, or is in substantial conflict with the proper discharge of his duties See R.I. Gen. Laws § 36-14-7(a), and R.I. Gen. Laws § 36-14-5(a). That prohibition encompasses virtually all personnel issues.

In reaching this conclusion, the Commission is guided by past advisory opinions which have permitted a person subject to the Code of Ethics to be in a supervisory position in relation to his or her spouse. Of particular help was A.O. 91-32, where a similar situation occurred. The promotion and wage increase of the Director for Personnel Services of the University of Rhode Island was being considered by her supervisor, the Assistant Vice-President for Human Resources and the President of the University. The Assistant Vice-President's supervisor was her spouse, the Vice-President for Business and Finance. Before the promotion issue arose, her spouse had excluded himself from review of any and all personnel matters which may have affected her. Instead, she presented such matters to her immediate supervisor, and thereafter directly to the President, thus bypassing her spouse. The Commission carefully reviewed this arrangement and found it permissible, thus allowing the administration to consider her for an increase in job responsibility and benefits. See also A.O. 92-56 (permitting the spouse of the Chief of the Fire Department for Narragansett to run for Town Council provided that she recuse herself, if elected, from any matters which may affect her husband, thus attempting to reduce any incentive on the part of the his supervisor, the Town Manager, to treat him favorably in anticipation of reciprocal treatment); but see A.O. 90-30 (cautioning a member of the Board of Fire Wardens for Glendale, in the event of his spouse accepting a position as the Fire District Tax Collector, not to utilize the notice and recusal sections of the Code on a routine or frequent basis in order to avoid the appearance of impropriety); A.O. 88-53 (stating that a violation of the Code will arise for the Executive Director of the Lincoln Housing Authority if his spouse applies for, or is hired to the position of Assistant Executive Director); A.O. 85-92 (advising that if, as a result of the non-dependent daughter of a member of the West Warwick Housing Authority being hired as the Executive Director, the member find herself frequently having to abstain from voting on issues affecting her daughter, then she would have to re-evaluate her position and seek future advisory opinions in order to avoid any potential appearance of impropriety).

Although concluding that Mrs. Capaldi may accept the position of Assistant Director (Real Estate), the Commission cautions that Mr. Capaldi should employ great care to ensure that he has absolutely no involvement in the day-to-day supervision of his wife, or with personnel issues that affect her directly. (That prohibition does not apply to issues that fall within the Code's § 7(b) exception). The practicality of achieving this objective may pose a problem. Simple recusal on all relevant issues would require an individual from an unrelated Department, not under Mr. Capaldi's control, to make such decisions. But, if he finds himself recusing on a routine or frequent basis, he may be in violation of Regulation 36-14-5003. Another alternative would be to establish a system within the Department which would serve the purpose of insulating him from all issues directly affecting his wife. To accomplish this task, a "Chinese Wall" must be erected to successfully insulate Mr. Capaldi from the type of involvement that would fall within the Code's prohibitions.

Even if RIDOT can erect a "Chinese Wall", if Mr. Capaldi ever finds himself in situations where he is required to become involved in personnel issues directly affecting his wife, the Commission advises that he should re-evaluate his position and seek future advisory opinions in order to avoid any potential violations of the Code of Ethics.

Footnotes

(1)A "Chinese Wall" is an invisible, impenetrable barrier, the purpose of which is to prevent contact between certain individuals. In this case, the "Chinese Wall" would function as a buffer between the Capaldis in relation to all personnel issues affecting Mrs. Capaldi.

(2)Mr. Pysz advised that the position of Assistant Director of Transportation (Real Estate) does not have an established Civil Service listing. The Department broadly defined the position and listed it with the Department of Employment and Training, as well as placing it on the multiple listing of the Rhode Island Board of Realtors. RIDOT did not give any preference to those already employed by the State.

(3)The panel reviewed approximately 35 resumes to determine whether an individual applicant was qualified. Three (3) members of the panel were from outside RIDOT, including one (1) from the private sector.

Keywords

Nepotism

Family: Public Employment