Advisory Opinion No. 2013-2 Advisory Opinion No. 2013-2 Re: Thomas P. Tighe QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s consideration of two grievances related to the Jamestown Police Department’s collective bargaining agreement, given that he is the former Chief of the Jamestown Police Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s consideration of two grievances related to the Jamestown Police Department’s collective bargaining agreement, notwithstanding that he is the former Chief of the Jamestown Police Department. The Petitioner is a member of the Jamestown Town Council (“Town Council”), having been recently elected in November 2012. He informs that he retired on July 1, 2011, after a forty-four year career in the Jamestown Police Department (“Police Department”), serving the last nineteen years as Chief. He states that during his tenure as Chief, he was not a member of the local police officers’ union. He represents that upon his retirement, he entered into a “Post-Retirement Health Insurance Agreement” with Jamestown (“Town”), where it was agreed that to reduce costs for the Town, the Petitioner and his spouse would enroll in Medicare and the Town would pay 95% of the costs for the Medicare supplement insurance. The Petitioner and the Town entered into this agreement on June 27, 2011. The Petitioner informs that there are two Police Department grievances presently before the Town Council for discussions on whether to settle or proceed to arbitration. He represents that both relate to interpretations of the Police Department’s collective bargaining agreement (“CBA”), which did not govern the terms of his employment as Chief. The first grievance, filed on March 22, 2012, is regarding whether the language on minimum manning in the CBA requires a minimum staffing level in the Police Department. He informs that this grievance arose after two officers retired and only one new officer was hired. The second grievance, filed on October 2, 2009, is regarding whether the CBA language providing lifetime healthcare to retired police officers can be interpreted to allow the Town to require those retired police officers to enroll in Medicare, when eligible, to offset the healthcare costs of the Town. Although this grievance was filed prior to his retirement, the Petitioner represents that he had no involvement in the matter while he was Chief, given that the change in retiree healthcare coverage was initiated by Town management for financial reasons. Cognizant of his former employment as Chief of the Police Department, the Petitioner seeks advice as to whether he may participate in the Town Council’s consideration of these two grievances. He represents that he can fairly and impartially participate given that his retirement benefits will not be affected by either of the grievances. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. Section 36-14-7(a). He is also prohibited from using his public position or confidential information received through his position to obtain financial gain, for himself or his family or business associates, other than that provided by law. Section 36-14-5(d). The Commission considered a similar fact pattern in Advisory Opinion 2001-8, in which a Westerly Town Council member, who had retired from the Westerly Police Department nearly two years prior to his election to the Council, sought advice as to whether he could participate in Council matters regarding the Westerly Police Department, its personnel, management, budget, etc. The Commission opined that the petitioner, as a former employee, no longer had a financial interest in matters affecting the Police Department. Therefore, he was permitted to participate in Police Department matters before the Council, as long as those matters did not implicate his private financial interests. Additionally, the Commission has generally opined that public officials can participate in matters involving their former employer as long as the employment had ended and there was no ongoing or anticipated future working relationship. See A.O. 2011-30 (opining that a Glocester Planning Board member could participate and vote on a matter in which the applicant was a person with whom he previously worked because the business relationship had ended, he was paid in full and there was no anticipated future business dealings between the parties); A.O. 2011-9 (opining that an East Providence City Council member was not prohibited from participating in and voting on City Council matters in which her former employer was an interested party, given that the employment had ended and there was no ongoing or anticipated future working relationship). In the present matter, the Petitioner seeks to participate in Town Council discussions of grievances related to his former employer, the first filed after he retired and the second that he had no involvement in while he was Chief. Both grievances involve the interpretation of a CBA that did not govern the terms of his employment as Chief. The Petitioner represents that the minimum staffing grievance does not implicate his private financial interests because it relates to the current employees of the Police Department, specifically, whether a vacant position left by a retired officer must be filled. He further informs that the healthcare grievance does not implicate his private financial interests because his health insurance coverage is governed by a separate, individualized contract with the Town, in which the Petitioner agreed to enroll in Medicare. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner may participate in the Town Council’s consideration of two grievances related to the Police Department, given that as a retiree he no longer has a financial interest in matters affecting the Police Department and these two grievances do not implicate his private financial interests. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2011-30 A.O. 2011-9 A.O. 2001-8 Keywords: Public Employment