Advisory Opinion No. 2014-2
Approved: January 14, 2014
Re: Chris Fierro
The Petitioner, the Chairman of the Rhode Island Department of Labor and Training Board of Review, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the Board of Review’s consideration of an appeal involving its former chairperson.
It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chairman of the Rhode Island Department of Labor and Training Board of Review, a state appointed position, is not prohibited by the Code of Ethics from participating in the Board of Review’s consideration of an appeal involving its former chairperson.
The Petitioner is the Chairman of the Rhode Island Department of Labor and Training (“DLT”) Board of Review (“Board”). He states that the Board is a quasi-judicial body established by Rhode Island General Laws § 42-16.1-6. He informs that the Board has three members, all of whom are appointed by the Governor with the advice and consent of the Senate. He states that the Board’s members are state employees and are compensated for a thirty-five hour work week. He further states that he is the neutral member of the Board, appointed to represent the public.
The Petitioner states that the Board is autonomous from the DLT and primarily adjudicates appeals for unemployment insurance claims. He represents that when an individual is separated from employment, DLT makes an initial determination of eligibility for benefits through a fact-finding interview with the employee (“claimant”) and the employer. He states that an appeal of a decision to deny benefits can be made by the claimant and an appeal of a decision to award benefits can be made by the employer. He informs that once an appeal is made, the case enters the jurisdiction of the Board and a hearing is scheduled before a hearing officer (“Referee”). Additionally, he states that a Referee’s decision is appealable to the full Board. Finally, he informs that the Rhode Island District Court, Sixth Division, maintains jurisdiction for judicial review of any Board decision.
The Petitioner represents that currently before the Board is an appeal filed by DLT, in its capacity as an employer. He informs that DLT has appealed a Referee’s decision to grant unemployment insurance to Thomas J. Daniels, the Petitioner’s predecessor as Chairman of the Board of Review, who served for sixteen years until June 2013. He states that Daniels’ initial claim for unemployment insurance was denied by DLT, but Daniels appealed and the decision was reversed by a Referee. DLT has now appealed the Referee’s decision to the full Board. The Petitioner represents that the other two Board members intend to recuse themselves from the matter because they served with Daniels on the Board. The Petitioner states that according to Board procedures for instances when one or more Board member recuses, the Chairman, as the member representing the public, will hear the case alone and issue a decision.
Based upon the above representations, the Petitioner asks if he can hear and decide the appeal of Daniel’s claim for unemployment insurance, which revolves around whether Daniels’ position as a Board member constituted employment that is eligible for unemployment insurance benefits. The Petitioner represents that other than holding the same position on the Board, he and Daniels have no other relationships. He states that Daniels is not his business associate, employer or family member. He further states that the Board’s legal counsel has advised that the Board’s role in the administrative appeal process cannot be bypassed.
Under the Code of Ethics, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d).
In the present matter, the Petitioner represents that he has no relationship of any kind with Daniels outside of the fact that they have both served in the same state position. He states that Daniels is not his business associate, employer or family member. Furthermore, any potential financial impact that Daniels’ claim may have upon the Petitioner’s own ability to seek unemployment insurance after leaving this position is too hypothetical and remote to be reasonably foreseeable because we cannot know how long the Petitioner will serve and under what circumstances his employment with the Board will end. See e.g. A.O. 2010-29 (opining that a Jamestown Town Council member, who was on the waiting list to join the Jamestown Boat Owners Association (“JBOA”), could participate in the Council’s decision regarding the future use of a property owned by the JBOA, given that any corresponding financial impact upon him was too hypothetical and remote because he had been on the list for over ten years and estimated that it would be an additional seven to ten years before he advanced to the top of the list). Finally, the Petitioner notes that his decision on the Daniels appeal is not final, but involves legal analysis that is subject to judicial review by the Rhode Island District Court, Sixth Division.
Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Board of Review’s consideration of an appeal involving its former chairperson.
Related Advisory Opinions:
This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation.
 R.I. Gen. Laws § 42-16.1-6 provides: “There shall be a board of review consisting of three (3) members. One member shall be a representative of labor, one member shall be a representative of industry, and one member shall be a representative of the public generally. Not more than two (2) members of the board shall be of the same political party.”