Advisory Opinion No. 2021-2

Rhode Island Ethics Commission

Advisory Opinion No. 2021-2

Approved: January 12, 2021

Re:  Board of Commissioners, Lime Rock Fire Department

QUESTION PRESENTED:

The Board of Commissioners for the Lime Rock Fire Department, by and through its chairperson, requests an advisory opinion regarding: (i) whether three commissioners who have family members employed by the Fire Department may participate in the decision to accept or reject, as a whole, a collective bargaining agreement addressing the employment of their family members; and (ii) whether the same three commissioners may, pursuant to the Rule of Necessity, participate in the negotiation of said collective bargaining agreement.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that: (i) three commissioners for the Lime Rock Fire Department who have family members employed by the Fire Department may participate in the decision to accept or reject, as a whole, a collective bargaining agreement addressing the employment of their family members; however, (ii) the same three commissioners may not, pursuant to the Rule of Necessity, participate in the negotiation of said collective bargaining agreement.

Ron Rivet, the Chairperson (“Chair”) of the Board of Commissioners (“Board”) for the Lime Rock Fire Department (“Fire Department”), writing on behalf of the Board, states that the Board consists of five (5) commissioners, and that a simple majority constitutes a quorum.  He identifies among the duties of the Board: the oversight of the operations of the Fire Department; approval of all bills incurred in the regular conduct of Fire Department affairs; and the exercise of exclusive authority over the establishment of all terms and conditions within the collective bargaining agreement (“CBA”) addressing the employment of members of the Fire Department.  The Chair informs that commissioners are elected to five-year terms by a majority vote of the electorate at annual meetings of the Lime Rock Fire District.  He explains that the terms are staggered so that one term expires each year, requiring the election of one new commissioner annually, and that a commissioner may serve two consecutive terms. 

The Chair states that three (3) of the current five (5) commissioners have relatives who are firefighters in the Fire Department.  Specifically, he represents that: Commissioner Arthur Jacques (“Commissioner Jacques”), who was elected to the Board in 2016, is the father of a firefighter; Commissioner Ryan P. Drugan (“Commissioner Drugan”), who was elected to the Board in 2020, is the brother-in-law of a firefighter; and Commissioner Joseph Nadro (“Commissioner Nadro”), who was elected to the Board in 2019, is the first cousin of a firefighter.  The Chair states that neither he nor the fifth commissioner, Mark Krieger (“Commissioner Krieger”), has a relative who is a member of the Fire Department. 

The Chair represents that members of the Fire Department are currently operating under a CBA approved in 2015 that was set to expire in 2018.  He further represents the he and the Board’s attorney, with some assistance from Commissioner Krieger, have been negotiating a new CBA since 2018 that is now near completion.  The Chair explains that, sometime before the end of April of 2021, the Board is expected to participate in a decision to accept or reject, as a whole, the CBA to which members of the Fire Department, including firefighters, will be subject.  The Board, through its Chair, seeks guidance from the Ethics Commission regarding whether Commissioners Jacques, Drugan, and Nadro may participate in the decision to accept or reject the CBA as a whole.[1]  Additionally, the Board seeks guidance from the Ethics Commission regarding whether, under the Rule of Necessity, Commissioners Jacques, Drugan, and/or Nadro may participate in the final stages of negotiating the CBA.  The Chair states that the Board would still able to finish negotiating the CBA without the involvement of these three commissioners. 

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest occurs if a public official has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed will derive a direct monetary gain, or suffer a direct monetary loss, by reason of his official activity.  Section 36-14-7(a).  A public official is also prohibited from using his public position to obtain financial gain, other than that provided by law, for himself, any person within his family, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d). 

Pursuant to Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage.  Regulation 1.3.1(B)(1).  The definition of “any person within his [] family” specifically includes “son,” “brother-in-law,” and “first cousin.”  Regulation 1.3.1(A)(2).  Regulation 1.3.1(B)(4)(a) specifically prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his family or a household member.  However, Regulation 1.3.1(B)(4)(b) permits a public official to participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his family or household member is impacted by the contract or agreement as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.  The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as to not constitute a substantial conflict of interest in violation of the Code of Ethics.

Participation in Collective Bargaining/Employee Contracts

Regulation 1.3.1(B)(4)(a)’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the impact of decisions as to individual components of a contract can be difficult to predict.  For that reason, an official’s participation in a contract issue that is seemingly unrelated to a family member can still have a resulting impact on other areas of the contract that would directly affect the family member.  For example, in Advisory Opinion 2011-14, the Ethics Commission opined that a member of the Foster-Glocester Regional School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the Foster-Glocester Teachers’ Union, given that her husband was a teacher in the Foster-Glocester Regional School District and a member of the Foster-Glocester Teachers’ Union.  However, the petitioner could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and the Foster-Glocester Teachers’ Union without her participation, provided that her husband was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of the Foster-Glocester Teachers’ Union.  See also A.O. 2010-35 (opining that a member of the Pawtucket School Committee was prohibited from participating in contract negotiations with the local bargaining unit in which his brother and sister-in-law were members, but was permitted to participate in the School Committee’s discussions and decision-making relative to approving or rejecting said contracts in their entirety, once negotiated by others).

In the instant matter, three (3) of the five (5) commissioners have conflicts of interest requiring their recusal from participation in the negotiation of the CBA.  However, while prohibited from participating in contract negotiations concerning their relatives’ employment, Commissioners Jacques, Drugan, and Nadro may take part in the Board’s decision to accept or reject the CBA in its entirety, once it has been negotiated by others.  Although Commissioners Jacques, Drugan and Nadro are permitted to participate in the overall vote to approve or reject the CBA as a whole, the Ethics Commission is aware that a general discussion can quickly devolve into a more specific review of contractual provisions.  As such, these three commissioners must be vigilant about identifying such instances where a general conversation begins to focus on individual aspects of the CBA that are likely to financially impact their relatives.  Should those circumstances arise, Commissioners Jacques, Drugan, and Nadro must recuse from further participation consistent with section 36-14-6 or seek further guidance from the Ethics Commission.

Rule of Necessity

Understanding that Regulation 1.3.1(B)(4)(a) prohibits three (3) of the five (5) commissioners from participating in the CBA negotiations, the Board inquires as to whether application of the Rule of Necessity would nevertheless apply to permit their participation.  The Ethics Commission has recognized and permitted a Rule of Necessity exception in matters where recusals inhibit governmental process, such as where the majority of public body members must recuse themselves and a resulting failure of a quorum renders the entity unable to act.  Public bodies may not, on their own, invoke the Rule of Necessity.  Rather, public bodies are required to seek an advisory opinion from the Ethics Commission permitting the use of the Rule of Necessity each time conflicts of interest would inhibit their necessary governmental process.  See, e.g., A.O. 2020-5 (opining that the New Shoreham Town Council could utilize the Rule of Necessity to achieve a quorum of five (5) members to hear and decide a matter relating to the potential amendment of an ordinance that would provide for the issuance of municipal permits for the operation of mobile food establishments in conformance with State law, given that four (4) of the five (5) Town Council members had conflicts of interest requiring their recusals); A.O. 2008-9 (opining that the Smithfield Zoning Board of Review could utilize the Rule of Necessity to achieve a quorum of five (5) members to hear and decide an appeal from a decision of the Planning Board, given that three (3) of the seven (7) Zoning Board members had conflicts of interest requiring their recusals).  Under the Rule of Necessity, the official or officials determined to have the least conflict may be permitted to participate so that an important governmental function can be accomplished.  See supra A.O. 2008-9. 

In the instant matter, three (3) of the five (5) commissioners have conflicts of interest requiring their recusal from participation in the negotiation of the CBA to which their relatives will be subject.  However, based upon the Chair’s representations, a quorum of the Board is not necessary to negotiate the CBA.  For that reason, the conflicts of interest on the parts of Commissioners Jacques, Drugan, and Nadro would not inhibit the Board’s process of negotiating the CBA.  These facts are distinguishable from those leading to the decision of the Ethics Commission to employ the Rule of Necessity when issuing each of the advisory opinions cited above.  Accordingly, it is the opinion of the Ethics Commission that the Rule of Necessity cannot be invoked under these circumstances and that Commissioners Jacques, Drugan, and Nadro must refrain from participating in the negotiation of the CBA, leaving said negotiation to be continued by the Chair, the Board’s attorney, Commissioner Krieger, or other Fire District representatives who do not have conflicts of interest.  See, e.g., A.O. 2003-61 (opining that five (5) members of the Tiverton Town Council were required to recuse from participation and vote in the Town Council’s consideration of whether to reimburse themselves, or other similarly situated Town Council members, for their legal expenses incurred in challenging an effort to organize a recall, and declining to opine that the Rule of Necessity could be utilized to obtain a quorum on the issue, given the failure of the petitioners to determine and represent that the Town Council was the only tribunal or entity in the Town capable of deciding the issues raised). 

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. 

Code Citations:          
§ 36-14-5(a)   
§ 36-14-5(d)   
§ 36-14-6        
§ 36-13-7(a)
520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004)       

Related Advisory Opinions:              
A.O. 2020-5   
A.O. 2011-14 
A.O. 2010-35 
A.O. 2008-9   
A.O. 2003-61 

Keywords:
Collective Bargaining Agreement     
Recusal           
Rule of Necessity

[1] Commissioners Jacques, Drugan, and Nadro have all separately confirmed their support for this request for an advisory opinion from the Ethics Commission.