Advisory Opinion No. 2011-47

Re: John A. Walsh, Ph.D.

QUESTION PRESENTED

The Petitioner, a member of the Rhode Island Board of Governors for Higher Education, a state appointed position, requests an advisory opinion regarding whether he may participate in the Board of Governors’ discussion and voting relating to ongoing contract negotiations and approvals of collective bargaining agreements with local bargaining units of the National Education Association of Rhode Island (“NEARI”), given that he is privately employed by NEARI as an Assistant Executive Director/Uniserv.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Board of Governors for Higher Education, a state appointed position, is prohibited by the Code of Ethics from participating in the Board of Governors’ discussion and voting relating to ongoing contract negotiations and approvals of collective bargaining agreements with local bargaining units of NEARI, given that he is privately employed by NEARI as an Assistant Executive Director/Uniserv.

The Petitioner is a member of the Rhode Island Board of Governors for Higher Education (“Board of Governors”), having been confirmed by the Rhode Island Senate on March 29, 2011. He informs that the Board of Governors has jurisdiction over the University of Rhode Island (“URI”), Rhode Island College (“RIC”), and the Community College of Rhode Island (“CCRI”). He represents that the Director of Labor Relations for the Office of Higher Education is responsible for negotiating, subject to the Board of Governors’ approval, the fourteen (14) collective bargaining agreements within the higher education system, some of which are NEARI local bargaining units. He advises that his duties as a member of the Board of Governors may require him to be informed during executive session about the ongoing negotiations with these bargaining units and also to vote to approve or deny such negotiated collective bargaining agreements. He states that he would not personally participate in negotiations with any of the local bargaining units.

On June 27, 2011, the Petitioner began his employment with NEARI as an Assistant Executive Director/Uniserv, working as a field representative for the following NEARI bargaining units: Exeter-West Greenwich Teachers, Rhode Island School for the Deaf Teachers and Teacher Assistants, Middletown Association of Auxiliary Personnel, Little Compton Municipal Employees, Scituate Paraprofessionals, South Kingstown Teachers, and South Kingstown Municipal Employees. The Petitioner informs that the Board of Governors does not have jurisdiction over the above NEARI bargaining units because those units do not involve employees of URI, RIC, or CCRI. He further states that any of the NEARI bargaining units relating to URI, RIC or CCRI would be represented before the Board of Governors by a different NEARI Assistant Executive Director/Uniserv. Additionally, he advises that some collective bargaining agreements may include a provision that calls for the employer to collect individual union dues to be paid to a NEARI local bargaining unit, a portion of which will flow to NEARI.

Given the above representations, the Petitioner seeks guidance as to whether the Code of Ethics prohibits his participation in the Board of Governors’ discussion and voting relating to ongoing contract negotiations and approvals of collective bargaining agreements with local bargaining units of NEARI, given that he is an employee of NEARI.

Under the Code of Ethics, a public official must recuse himself from participation when the official’s employer, or the interests of his employer, appear before his agency. Commission Regulation 36-14-5002(3). In addition, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d).

The Ethics Commission has previously found that the Code of Ethics prohibits a public official from participating in any matter before his agency in which his employer appears, or which involve the interests of his employer. See A.O. 2009-1 (opining, inter alia, that a member of the Scituate Town Council must recuse from matters before the Town Council that involve the interests of his employer); A.O. 2008-56 (opining that a member of the Foster School Committee must recuse herself when the interests of her employer appear before the School Committee); A.O. 2006-48 (opining that a member of the Cranston Zoning Board of Review may not participate in the Zoning Board’s consideration of an appeal involving the issuance of a building permit, given that the petitioner’s employer owns and uses property that directly abuts the subject property); A.O. 2002-74 (opining, pre-Irons, that a state senator, who was also a union employee, must recuse from participating in matters that would directly affect his employers).

In the present matter, the Petitioner’s private employer, NEARI, has negotiated collective bargaining agreements that are likely to financially impact NEARI and its members. Under these circumstances, the Petitioner’s participation in a decision to approve or reject such a contract would violate the Code of Ethics. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in the Board of Governors’ discussion and voting relating to ongoing contract negotiations and approvals of collective bargaining agreements with local NEARI bargaining units, given that he is privately employed by NEARI as an Assistant Executive Director/Uniserv. Notice of recusal should be filed with the Ethics Commission in accordance with § 36-14-6.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation 36-14-5002

Related Advisory Opinions:

A.O. 2009-1

A.O. 2008-56

A.O. 2006-48

A.O. 2002-74

Keywords:

Union – Bargaining Units