Re: Judith A. Babcock, D.Ed.
A. QUESTION PRESENTED
Whether, under the hardship exception to Commission Regulation 36-14-5006, a Commissioner of the Rhode Island Commission on Women may serve as the Commission's Interim Executive Director, a salaried position, while the Commission interviews candidates to serve as the full-time, permanent Executive Director.(1)
It is the opinion of the Rhode Island Ethics Commission that, pursuant to the hardship exception to Commission Regulation 36-14-5006, a Commissioner of the Rhode Island Commission on Women may serve as the Commission's Interim Executive Director. This opinion is based on the Petitioner's representations that a) the Commissioner is uniquely familiar with the issues affecting equity for women, the work of the Commission, and the Commission's office procedures; b) the Commission has not had a full-time Executive Director for over six months; c) the Commissioner will resign from her position on the Commission; d) the Commissioner will serve as Interim Executive only until the Commission completes its search for a permanent replacement; and e) the hiring process for the Executive Director will be an open and public process.
The Rhode Island Commission on Women employs two salaried employees; an Executive Director and an Administrative Assistant. In March, 1995, the Executive Director, who had served in that capacity for the past five years, went out on paid medical leave. Because of budget constraints, the Commission was unable to hire a replacement while the Executive Director was on paid leave. In September and October, a volunteer served as the Interim Executive Director on a half-time basis.(2)
In November, 1995, the Commission's Executive Director resigned. Because of the absence of the Executive Director and the time needed to complete a search, the Petitioner advised that the Commission would like to appoint one of the Commissioners, who is particularly knowledgeable of the Commission's goals and operating procedures, as the Interim Executive Director until a permanent replacement is appointed. The Petitioner represented that the hiring process, which will last approximately six months, will be an open and public process.
At issue in this advisory request in whether a Commissioner of the Commission on Women may accept a paid position as the Commission's Interim Executive Director. Under the Code of Ethics, a Commissioner may not use her public position or confidential information received through this position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Also, under Commission Regulation 36-14-5006, a Commissioner may not accept appointment by her Commission to any position which carries with it any financial benefit, until one year after officially terminating membership with her agency unless the Ethics Commission approves this appointment based on a finding that denying the position to the public official would result in a hardship for the agency.
In past advisory opinions, the Ethics Commission has permitted a member of a governmental entity to seek a position with the agency under the hardship exception where a job vacancy does not attract a number of applicants or where only a few uniquely qualified individuals are available to fill a particular position. See A.O. 95-68 (opining that members of the Newport Common Burial Ground Advisory Commission could accept a contract from said Commission to carry out a federally funded project administered where no other individuals had responded to the request for proposals and the public officials would take a leave of absence from their public position); A.O. 94-39 (allowing a member of the Newport Beautification and Conservation Commission and a technical contractor in his private employment, to seek and accept a contract to restore and maintain the City's gas lights due to that individual's unique qualifications); and A.O. 90-87 (permitting a member of the School Committee to serve as an extra curricular strength and condition coach for the High School since the School Department had not received any other applicants for the position).
After considering the facts presented by the Petitioner, we conclude that there is sufficient evidence of hardship to warrant an exception from the provisions of Commission Regulation 36-14-5006. A Commissioner of the Commission on Women, therefore, may serve as the Interim Executive Director during the Commission's search for a permanent replacement. This conclusion is based on the Petitioner's representations that a) the Commissioner is uniquely familiar with the issues affecting equity for women, the work of the Commission, and the Commission's office procedures; b) the Commission has been without a full-time Executive Director for over six months; c) the Commissioner will resign from her position on the Commission; d) the Commissioner will serve as Interim Executive Director only until the Commission completes its search for a permanent replacement, a sixth month period; and e) the hiring process for the Executive Director will be an open and public process.
(1) In her request, the Petitioner also seeks guidance as to whether Commissioners may apply to be the permanent Executive Director. During a meeting of this Commission on December 18, 1995, the Petitioner requested that the Commission address the interim/permanent questions separately. This opinion only addresses whether a Commissioner may serve in the interim position.
(2) The Petitioner advises that the volunteer Interim Executive Director resigned after obtaining full-time employment elsewhere.