Advisory Opinion No. 2011-17

Re: Brett N. Pelletier

QUESTION PRESENTED

The Petitioner, a member of the Tiverton Town Council, a municipal elected position, seeks an advisory opinion regarding whether he may participate in contract negotiations and the vote on a finally negotiated contract with Local 406 of the International Brotherhood of Police Officers, given that his father is a special officer in the Tiverton Police Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in contract negotiations with Local 406 of the International Brotherhood of Police Officers, given that his father is a special officer of the Tiverton Police Department. The Petitioner may, however, participate in the Town Council’s decision to accept or reject a contract in its entirety once negotiated by the Town Council and Local 406, provided that his father 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 Local 406.

The Petitioner is a member of the Tiverton Town Council (“Town Council”). He informs that his duties include supervising the Town Administrator’s negotiations with Local 406 of the International Brotherhood of Police Officers (“Local IBPO 406”) and subsequently voting to ratify a new contract or vote to proceed to arbitration. He represents that his father is a retired member of Tiverton Police Department, currently serving as an active special officer. He states that his father works on an as-needed basis, being called from a list to work traffic or construction details in the event that a permanent officer is not available. He advises that his father is not a union member, but notes that as a special officer he is subject to the hourly pay rates for private details negotiated in the collective bargaining agreement with Local IBPO 406. Cognizant of this potential conflict, the Petitioner informs that he has recused himself from all Town Council discussions involving ongoing contract negotiations with Local IBPO 406. The Petitioner seeks clarification as to what limitations the Code of Ethics places on his participation in the Town Council’s negotiation and vote on a collective bargaining agreement with Local IBPO 406.

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.

In the present matter, the Petitioner is prohibited from participating in any Town Council discussions and directions to the Town Administrator regarding ongoing contract negotiations with Local IBPO 406, given that his father’s hourly rate as a special officer is a negotiated part of the contract. However, pursuant to subsection (b)(4)(B), the Petitioner is permitted to participate in the Town Council’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. 2009-12 (opining that a member of the Coventry Town Council, whose spouse was a Lieutenant in the Coventry Police Department, was prohibited from participating in contract negotiations with the Coventry Police Officers Union, but could vote to accept or reject the 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 his father. 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. 2009-12

A.O. 2007-31

Keywords:

Nepotism

Issued March 8, 2011