Advisory Opinion No. 2013-7 Advisory Opinion No. 2013-7 Re: David R. Green QUESTION PRESENTED: The Petitioner, a member of the East Greenwich School Committee, a municipal elected position, seeks an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the School Committee’s negotiations with the East Greenwich Teachers’ Union relative to a collective bargaining agreement that will take effect after the termination of his spouse’s “one year only” teaching position in the East Greenwich School Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the East Greenwich School Committee, a municipal elected position, is not prohibited by the Code of Ethics from participating in the School Committee’s negotiations with the East Greenwich Teachers’ Union relative to a collective bargaining agreement that will take effect after the termination of his spouse’s “one year only” teaching position in the East Greenwich School Department. The Petitioner is a member and chair of the East Greenwich School Committee (“School Committee”), having been elected to a four (4) year term in November 2010. He informs that his spouse, who retired from teaching in another state, is a certified middle school teacher. He states that, since 2007, his spouse has worked as both a substitute teacher and a long term substitute teacher at Cole Middle School (“Cole”) in the East Greenwich School District (“School District”). The Petitioner represents that in August 2012 his spouse began her third long term substitute position at Cole to fill an opening left by Dan Seeger who was promoted to Interim Assistant Principal. He states that when Mr. Seeger became the permanent Assistant Principal the School District converted the long term substitute position to a contract position for the duration of the school year and advertised a “one year only” teaching position.[1] He states that his spouse applied for this position and was hired on November 13, 2012, with a contract end date of June 21, 2013. He states that as a “one year only” contract teacher, his spouse is now a member of the East Greenwich Teachers’ Union (“Teachers’ Union”), which she was not a member of as a substitute or longer term substitute teacher. The Petitioner represents that the School Committee will commence negotiations with the Teachers’ Union in January or early February 2013 for a contract with an effective date of September 1, 2013. The Petitioner states that his spouse’s employment and membership in the Teachers’ Union will terminate on June 21, 2013. He further states that his spouse has retired from teaching and has no intention of pursuing a permanent teaching position for the 2013-2014 school year or any subsequent year. He represents, however, that she plans to continue working as a substitute teacher as opportunities arise. He informs that the daily rates for substitute teachers are not part of the School Department’s collective bargaining agreement with the Teachers’ Union, given that the rates do not impact members of the Teachers’ Union. He states that the Superintendent advised him that the daily rates for substitute teachers are set by the School District, without the review or approval of the School Committee, after surveying substitute teacher salaries in other districts. Given his spouse’s current membership in the Teachers’ Union, the Petitioner states that he has ceased all activity associated with the School Committee’s negotiating team until he receives further guidance from the Ethics Commission. Commission Regulation 36-14-5004 (“Regulation 5004”) entitled “Nepotism,” specifically addresses the question raised by the Petitioner. Regulation 5004(b)(4), entitled “Participation in Collective Bargaining/Employee Contracts” provides: (A) Negotiations. No 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. (B) Vote on Entire Contract. Notwithstanding the prohibition set forth in subsection 4(A), a person subject to the Code of Ethics may participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his or her family or household member is impacted by the contract or agreement as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. Regulation 5004 prohibits the Petitioner from participating in collective bargaining negotiations that address or affect the employment, compensation or benefits of his spouse. In the present matter, the Petitioner seeks to participate in the School Committee’s negotiations with the Teachers’ Union regarding a collective bargaining agreement that would take effect on September 1, 2013, after his spouse’s “one year only” teaching position and corresponding membership in the Teachers’ Union ceases on June 21, 2013. Therefore, the Petitioner’s participation is not prohibited by Regulation 5004 because the negotiations neither address nor affect his spouse’s employment with the School District, given that her position automatically terminates prior to the effective date of the contract and she has no intention of seeking another permanent position with the School District. Furthermore, although his spouse may continue to serve as a substitute teacher after September 1, 2013, as needed, substitute teachers’ salaries are not included in the teachers’ collective bargaining agreement. Contra A.O. 2011-17 (opining that a Tiverton Town Council member was prohibited from participating in contract negotiations with the local police officers’ union because his father’s hourly rate as a special officer, a non-union position working construction or traffic details, was a negotiated part of the union contract). Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the School Committee’s negotiations with the Teachers’ Union relative to a collective bargaining agreement that will take effect after the termination of his spouse’s “one year only” teaching position in the East Greenwich School Department. Code Citations: Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2011-17 Keywords: Nepotism Unions/ Bargaining Unit [1] The Petitioner represents that he did not participate in any actions, discussions or activities that led to the teacher opening that arose as a result of Mr. Seeger’s promotion, including the vote to approve his interim position, and the interview process and vote to approve his permanent position as Assistant Principal. He further represents that he recused from the vote to approve his spouse’s appointment to her current “one year only” position.