Advisory Opinion No. 2001-40

Re: Barbara J. Kettle

QUESTION PRESENTED

The petitioner, a Richmond Recreation Commission member, a municipal appointed position, requests an advisory opinion as to whether the Commission may employ her son as a youth counselor in its summer recreation program.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the son of the petitioner, a Richmond Recreation Commission member, a municipal appointed position, from accepting employment as a youth counselor in its summer recreation program, provided that the petitioner recuses from participation in 1) any and all aspects of the hiring process for youth counselors, including establishing criteria for employment; and 2) all personnel matters relating to her son.

The petitioner was appointed to the Richmond Recreation Commission in 2000 and advises that her son has served as a youth counselor in its summer recreational program for the past two years. She represents that she conducts interviews for the youth counselor positions and recused herself during her son’s interview last year. She indicates that the Town Council hires the youth counselors based upon the Recreation Commission’s recommendation. She further advises that she would not supervise her son and has no involvement with the program’s payroll.

The Code of Ethics provides that a public official or employee 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 her duties in the public interest. A substantial conflict of interest exists if the official or employee has reason to believe or expect that she or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of 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 prohibit 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 since the issuance of GCA No. 1, the Commission has considered whether, in light of the relevant Code provisions and GCA No. 1, particular public officials or employees would be able to 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 or her family member.

After considering the relevant provisions of the Code of Ethics and past advisory opinions, the Commission concludes that the Richmond Recreation Commission may employ the petitioner’s son as a youth counselor in its summer program, provided that the petitioner exercises notice and recusal as to any and all aspects of the hiring process for the youth counselor positions, including establishing criteria for employment. Further, the Code of Ethics requires the petitioner to recuse from participation in all personnel matters relating to her son. See R.I. Gen. Laws § 36-14-5(a), (d). Additionally, she is cautioned that recusal may become necessary in other instances, such as in personnel matters affecting her son’s supervisors. If such matters should arise, she should either recuse or seek additional guidance from the Ethics Commission. Notice of recusal should be filed both with the Richmond Recreation Commission and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the law constrains the Commission to issue advisory opinions only as to prospective, not past, conduct.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2000-89

2000-81

2000-75

2000-59

2000-42

2000-16

2000-5

99-147

99-135

99-131

99-73

99-47

98-122

98-119

98-115

97-140

97-49

97-22

97-6

96-118

96-113

96-110

96-109

96-16

95-113

95-71

95-46

95-45

92-56

91-32

GCA 1

Keywords:

Family: public employment

Family: supervision

Nepotism