Advisory Opinion No. 2012-18

Re: Lee Kissinger

QUESTION PRESENTED:

The Petitioner, a member of the Exeter-West Greenwich (“EWG”) School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the subcommittee negotiations between the EWG School Committee and the Exeter-West Greenwich Regional School District teachers’ union that is affiliated with the National Education Association of Rhode Island (“NEARI”), given that his wife is a member of another NEARI affiliated teachers’ union.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter-West Greenwich School Committee, a municipal elected position, is not prohibited by the Code of Ethics from participating in the subcommittee negotiations between the EWG School Committee and the Exeter-West Greenwich Regional School District teachers’ union that is affiliated with NEARI, notwithstanding that his wife is a member of another NEARI affiliated teachers’ union.

The Petitioner was appointed by the West Greenwich Town Council in December, 2011, to fill a vacancy on the EWG School Committee. He states that his term concludes at the end of 2012 and that he is seeking election to a full term. He informs that his wife is a teacher in the Chariho School District and is a member of the Chariho School District Teachers’ Association NEARI/NEA (“Chariho Teachers’ Union”). He states that his wife does not hold a leadership position in the Chariho Teachers’ Union.

The Petitioner represents that he has been asked by the Chairperson of the EWG School Committee to participate in contract negotiations with the Exeter-West Greenwich Regional School District Teachers’ Association/ NEARI/NEA (“EWG Teachers’ Union”). He states that he would like to participate in the EWG School Committee’s negotiations with the EWG Teachers’ Union. Cognizant of the Code of Ethics, the Petitioner seeks advice as to whether he may participate in EWG School Committee negotiations with the EWG Teachers’ Union, a local bargaining unit of NEARI, given that his wife is a member of a different local bargaining unit of NEARI.

Under the Code of Ethics, 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. Section 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). Additionally, 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). 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).

Additionally, the “Nepotism” provision of the Code of Ethics, Commission Regulation 36-14-5004 (“Regulation 5004”), provides that “[n]o 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.” Regulation 5004(b)(4)(A). See A.O. 2011-14 (opining that a Foster-Glocester Regional (“FGR”) School Committee member was prohibited from participating in contract negotiations between the FGR School Committee and the Foster-Glocester Teachers’ Union, given that her husband was a teacher in the FGR school district and a member of the Foster-Glocester Teachers’ Union).

The Commission has previously considered somewhat analogous situations where public officials sought to participate in negotiations, in their public capacity, with a different local bargaining unit under 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 mere 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.

See A.O. 2004-2 (concluding that a member of the Tiogue Fire District Council could 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 was merely a member of the IAFF and not a business associate of that organization); A.O. 2003-18 (opining that a South Kingstown School Committee member could participate in negotiations with the NEA South Kingstown teachers’ union, notwithstanding that she was a member of the URI Professional Staff Association, which was also represented by NEA, because she was merely a member of NEA and negotiations would be with a different local of the same umbrella organization); see also A.O. 2009-11 (opining that a member of the Exeter-West Greenwich School Committee, who was also a member of the South Kingstown teachers’ bargaining unit of NEARI, was not prohibited by the Code from participating in School Committee matters in which the NEARI representative of the Exeter-West Greenwich teachers’ union was a participant, notwithstanding that the same NEARI representative was also assigned to the South Kingston Teachers’ bargaining unit).

In the present matter, the Petitioner seeks to participate in the subcommittee negotiations between the EWG School Committee and the EWG Teachers’ Union, an affiliate of NEARI. Initially, we conclude that Regulation 5004 is not implicated here because the Petitioner’s wife is not a member of the EWG Teacher’s Union and, therefore, his official action will not address or affect the terms of his wife’s employment contract. Additionally, section 5(a) is not implicated here because evidence of a direct financial impact cannot be ascertained from the facts represented by the Petitioner. Finally, the Petitioner’s wife’s mere membership in the Chariho Teachers’ Union, an affiliate of NEARI, does not make her a business associate of either NEARI or its agents assigned to represent the EWG Teachers’ Union. Thus, the Petitioner is not a business associate of NEARI.

For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the subcommittee negotiations between the EWG School Committee and the EWG Teachers’ Union, that is affiliated with NEARI, notwithstanding that his wife is a member of another NEARI affiliated teachers’ union.

Code Citations:

§ 36-14-2(3)

§ 36-14-2(7)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-7(a)

Commission Regulation 36-14-5004

Related Advisory Opinions:

A.O. 2009-11

A.O. 2008-70

A.O. 2008-15

A.O. 2004-2

A.O. 2003-18

A.O. 99-36

A.O. 96-92

Keywords:

Family: Public Employment

Nepotism

Unions/Bargaining Units