Advisory Opinion No. 2011-14

Re: Cynthia A. Joyce

QUESTION PRESENTED

The Petitioner, a member of the Foster-Glocester Regional School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her participation in contract negotiations between the Foster-Glocester Regional School Committee and the Foster-Glocester Teachers’ Union, given that her husband is a member of the Teachers’ Union.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Foster-Glocester Regional School Committee, a municipal elected position, is prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the Teachers’ Union, given that her husband is a member of the Teachers’ Union. The Petitioner may, however, participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and Teachers’ Union, provided that her husband is 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 Teachers’ Union.

The Petitioner is a recently elected member of the Foster-Glocester Regional School Committee (“School Committee”). She represents that her husband is a teacher in the Foster-Glocester Regional School Department and a member of NEA Ponaganset, Local 899 (the “Teachers’ Union”). Cognizant of potential conflicts of interest, the Petitioner asks what limitations the Code of Ethics places on her participation in the School Committee’s negotiation of a collective bargaining agreement with the Teachers’ Union.

Commission Regulation 36-14-5004 (“Regulation 5004”) entitled “Nepotism,” specifically addresses the question raised by the Petitioner. Regulation 5004(b)(4), entitled “Participation in Collective Bargaining/Employee Contracts” provides:

(A) Negotiations. No person subject to the Code of Ethics shall participate in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his or her family or a household member.

(B) Vote on Entire Contract. Notwithstanding the prohibition set forth in subsection 4(A), a person subject to the Code of Ethics may 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 or her 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.

Regulation 36-14-5004’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 have a resulting impact on other areas of the contract that would directly affect the family member.

Accordingly, the Petitioner is prohibited from participating in any School Committee contract negotiations with the Teachers’ Union in which her husband is a member. Specifically, in response to the questions enumerated in her request for an advisory opinion, the Petitioner cannot participate in executive session discussions regarding ongoing contract negotiations with the Teachers’ Union that her husband is a member of. In the event of her recusal during executive session discussions, she must leave the room if it is a meeting from which the public is excluded.

However, pursuant to subsection (b)(4)(B), the Petitioner is permitted to participate in the School Committee’s discussion and decision-making relative to approving or rejecting the contract in its entirety, once negotiated by others. 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. See A.O. 2010-35 (opining that a member of the Pawtucket School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the local bargaining unit in which his brother and sister-in-law were members, but could participate in the School Committee’s decision to accept or reject the labor contract as a whole); A.O. 2007-31 (opining that a member of the Johnston School Committee must recuse from contract negotiations with the teachers’ union, given that her child was a teacher and a member of the union, but could participate in the School Committee’s decision to accept or reject the labor contract as a whole).

Although the Petitioner is permitted to participate in the overall vote to approve or reject the contract, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact her husband. In such circumstances, the Petitioner must recuse from further participation pursuant to R.I. Gen. Laws § 36-14-6 or, if possible, seek further guidance from the Ethics Commission.

Code Citations:

Commission Regulation 36-14-5004

§ 36-14-6

Related Advisory Opinions:

A.O. 2010-35

A.O. 2009-32

A.O. 2007-32

A.O. 2007-31

Keywords:

Nepotism

Issued March 8, 2011