Advisory Opinion No. 2012-9

Re: Sergeant Matthew Benson:

QUESTION PRESENTED:

The Petitioner, a member of the Retirement Board for the Town of Johnston Fire Fighter and Police Officer Pension Fund, a municipal appointed position, seeks an advisory opinion as to whether he may participate in the Retirement Board’s consideration of a request by the International Brotherhood of Police Officers, Local 307, of which he is both a general member and Secretary of the executive board, to stay enforcement of an ordinance related to disability pensions pending the outcome of a grievance arbitration.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Retirement Board for the Town of Johnston Fire Fighter and Police Officer Pension Fund, a municipal appointed position, is prohibited from participating in the Retirement Board’s consideration of a request by the International Brotherhood of Police Officers, Local 307, of which he is both a general member and Secretary of the executive board, to stay enforcement of an ordinance related to disability pensions pending the outcome of a grievance arbitration.

The Petitioner is a member of the Retirement Board for the Town of Johnston (“Town”) Fire Fighter and Police Officer Pension Fund (“Retirement Board”), which was originally established by municipal ordinance in February 2011. He represents that the Retirement Board has seven (7) members: the Director of Finance; two (2) designees of the Town Council; two (2) designees of the Mayor; one (1) firefighter who is a member of IAFF, AFL-CIO, Local 1950; and himself as the designated police officer member, who must be a member of International Brotherhood of Police Officers Local 307 (“Local 307”).

The Petitioner is full-time Sergeant for the Town’s Police Department. He informs that he is both a general member of Local 307 and that he also serves on Local 307’s executive board as Secretary. He states that Local 307 has been the exclusive bargaining representative for all full time members of the Town’s Police Department since 1973, excluding the Chief and Deputy Chief. He informs that Local 307 appointed him to serve as the police officer member of the Retirement Board.

The Petitioner represents that the ordinance establishing the Retirement Board also instituted an earnings cap for disability retirees. To that end, he states that the Town sent letters to certain retirees receiving disability pensions, asking them to provide the Town with information regarding post-retirement earnings. He states that Local 307 filed a grievance against the Town, alleging that the earnings cap provision violates the terms of the collective bargaining agreement (“CBA”) in effect at the time those individuals retired. He represents that the grievance will proceed to arbitration according to the terms of the CBA. He notes that neither he nor any of his relatives are presently receiving a disability pension from the Town.

The Petitioner informs that on March 7, 2012, an attorney representing Local 307 appeared before the Retirement Board asking that any further action regarding the enforcement of the earnings cap ordinance provision be held in abeyance until the grievance has been arbitrated. Based upon the above representations, the Petitioner asks whether he can participate in the Retirement Board’s consideration of whether to hold the enforcement of the earnings cap ordinance provision in abeyance until the grievance has been arbitrated, given that he is both a member and Secretary of Local 307, the entity that is requesting the stay and that has brought the grievance.

Under the Code of Ethics, a public official must recuse himself from participation when his business associate or a person authorized by his business associate, appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 36-14-5002 (“Regulation 5002”); R.I. Gen. Laws § 36-14-5(f). The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, 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). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3).

The Commission has repeatedly concluded that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2011-27; A.O. 2010-25; A.O. 2009-29; A.O. 2009-10; A.O. 2008-36; A.O. 2008-35; A.O. 2007-58; A.O. 2007-45; A.O. 2003-4; A.O. 2002-72; A.O. 98-156.

More specifically, in advisory opinions involving board members of local bargaining units, the Commission has concluded that if an official has a leadership position in the union, the official must recuse himself if the interests of the union would be affected by an action to be taken by his public agency. A.O. 2002-72. See also A.O. 98-44 (opining, inter alia, that a Commissioner on the Fire Safety Code Board of Appeal and Review must recuse from matters involving property owned by IAFF, Local 799, given that he was the President of Local 799 and, thus, a business associate of that entity); A.O. 97-91 (opining that a member of the Rhode Island State Labor Relations Board (“Board”)—who also served as President and Business Manager of the Public Service Employees’ Union, Local 1033 of the Laborers’ International Union of North America (“Laborers’ Union”), AFL-CIO and President of the Rhode Island Laborers’ District Council, an umbrella organization of local unions affiliated with the Laborers’ Union—could not participate in the Board’s consideration of matters involving local unions affiliated with the District Council while he serves as President of the District Council).

In the present matter, the Petitioner is a business associate of Local 307 because he holds a leadership position in that organization as the Secretary of the executive board. As such, Regulation 5002 and § 36-14-5(f) require that the Petitioner recuse from all Retirement Board matters that financially impact Local 307 or for which a representative or legal counsel for Local 307 appears or presents evidence or argument before the Retirement Board.

Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is required to recuse from the Retirement Board’s consideration of whether to hold the enforcement of the earnings cap ordinance provision in abeyance until the grievance has been arbitrated, given that he is the Secretary of Local 307’s executive board. Notice of recusal must be filed with the Retirement Board and the Ethics Commission in accordance with § 36-14-6.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation 36-14-5002

Related Advisory Opinions:

A.O. 2011-27

A.O. 2010-25

A.O. 2009-29

A.O. 2009-10

A.O. 2008-36

A.O. 2008-35

A.O. 2007-58

A.O. 2007-45

A.O. 2003-4

A.O. 2002-72

A.O. 98-156

A.O. 98-44

A.O. 97-91

Keywords:

Business Associate

Recusal

Unions/Bargaining Units