Advisory Opinion No. 2011-35

Re: Theresa C. Donovan

QUESTION PRESENTED

The Petitioner, a member of the Exeter-West Greenwich Regional School Committee, a municipal elected position, requests an advisory opinion regarding whether she may serve as a member of the negotiating team in collective bargaining with the Teachers’ Association/ NEARI/NEA, given that as an employee of the Town of Narragansett she is a member of Local 1179 of Rhode Island Council 94, AFL-CIO.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter-West Greenwich Regional School Committee, a municipal elected position, may serve as a member of the negotiating team in collective bargaining with the Teachers’ Association/ NEARI/NEA, notwithstanding that as an employee of the Town of Narragansett she is a member of Local 1179 of Rhode Island Council 94, AFL-CIO.

The Petitioner is a member of the Exeter-West Greenwich Regional School Committee (“School Committee”). She represents that the School Committee is preparing to commence contract negotiations with the Exeter-West Greenwich Regional School District Teachers’ Association/ NEARI/NEA (“Teachers’ Union”) and advises that she would like to serve as a member of the negotiating team.

The Petitioner also informs that she is an employee of the Town of Narragansett, serving as deputy town clerk, a classified position that requires her to be a member of Local 1179 of Rhode Island Council 94, AFL-CIO (“Council 94”). She informs that she holds no leadership position in Local 1179 of Council 94, and that her union membership dues are automatically deducted from her paycheck. Based on these facts, the Petitioner asks if she may serve as a member of the School Committee’s negotiating team in its collective bargaining with the Teachers’ Union given that she is a public employee in another town and is a member of Local 1179 of Council 94.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d).

The Code of Ethics also provides that no business associate of any person subject to the Code of Ethics shall represent herself or any other person before the municipal agency of which the person is a member, unless the agency is advised of the nature of the business relationship, and the person subject to the Code recuses from voting on, or otherwise participating in, the matter. Section 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7).

The Commission has not previously considered the precise issue presented by this Petitioner, where a public official seeks to negotiate, in her public capacity, with a local bargaining unit of an umbrella organization of which she is not a member. However, it has considered somewhat analogous situations where public officials sought to participate in negotiations, in their public capacity, with a different local bargaining unit of the same umbrella organization of which they were a member. For example, in Advisory Opinion 2008-70 a Narragansett School Committee member sought advice regarding whether she could participate in subcommittee negotiations with the local bargaining unit of NEARI to negotiate the Narragansett teachers’ union contract, given that she was a member of the Professional Staff Association at the Community College of Rhode Island (“CCRI”), a different local of NEARI. There, the Commission opined that the petitioner could participate in negotiations because her membership in the CCRI Professional Staff Association did not make her a business associate of either the umbrella organization, NEARI, or its agents assigned to represent the Narragansett teachers’ union. A.O. 2008-70. See also A.O. 2008-15 (opining that a member of the Jamestown School Committee, who is also a teacher in Little Compton and a member of the Little Compton teachers’ bargaining unit of NEARI, is not prohibited by the Code of Ethics from participating in Jamestown School Committee matters in which the NEARI representative of the Jamestown teachers’ bargaining unit is a participant); A.O. 2004-2 (concluding that a member of the Tiogue Fire District Council may negotiate and enforce a collective bargaining agreement with members of the International Association of Firefighters (IAFF) Local 3514, and participate in personnel issues and discipline hearings regarding union district personnel, notwithstanding his membership in a different IAFF Local, given that he is merely a member of the IAFF and not a business associate of that organization); A.O. 99-36 (concluding that a North Providence School Committee member, who is also a teacher in Cranston and a member of the Cranston Teachers’ Association, may participate in negotiations with the North Providence Teachers’ Association, notwithstanding that both unions are part of the same umbrella organization, because the petitioner is a member of a different local); and A.O. 96-92 (finding that a member of Rhode Island Laborers’ Local 1215, who serves as the Chairperson of the Westerly Housing Authority Board of Commissions, may participate in the consideration of a contract with Rhode Island Laborers’ Local 1217, notwithstanding the fact that he is a member of a different local of the same union because he is not a business associate of Local 1217).

In the instant matter, the Petitioner seeks to participate in negotiations with a local bargaining unit of a completely different umbrella labor organization, of which she is not a member. Because of her employment as a deputy town clerk, the Petitioner is required to be a member of Council 94, an organization which excludes teachers from its membership and is separate and distinct from NEARI. For these reasons, the Petitioner is not a business associate of NEARI. Accordingly, it is the opinion of the Ethics Commission that the Petitioner, a member of the Exeter-West Greenwich Regional School Committee, may serve as a member of the negotiating team in collective bargaining with the Teachers’ Union.

Code Citations:

§ 36-14-2(3)

§ 36-14-2(7)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2009-11

A.O. 2008-70

A.O. 2008-15

A.O. 2004-2

A.O. 2003-74

A.O. 2001-39

A.O. 99-36

A.O. 96-92

Keywords:

Unions/Bargaining Unit

Business Associate