Advisory Opinion No. 2014-13 Rhode Island Ethics Commission Advisory Opinion No. 2014-13 Approved: May 13, 2014 Re: Paulette D. Hamilton QUESTION PRESENTED: The Petitioner, the Town Administrator for the Town of North Smithfield, a municipal elected position, requests an advisory opinion regarding whether she may initiate and, if approved by the Town Council, receive a longevity payment from the Town that is awarded to all employees after five years of service. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Administrator for the Town of North Smithfield, a municipal elected position, may initiate and, if approved by the Town Council, receive a longevity payment from the Town that is awarded to all employees after five years of service. The Petitioner has been the Town Administrator for the Town of North Smithfield since December 2008. The Town Administrator is an elected position with a two-year term. The Petitioner was first elected in November 2008 and was reelected to the position twice, in 2010 and 2012. As part of her duties as the Town Administrator, the Petitioner is involved in negotiating a collective bargaining agreement (“CBA”) between the Town and its public employees who are members of Local 937, Rhode Island Council 94/AFSCME/AFL-CIO. The Petitioner states that the Town’s negotiation team also includes the Town’s Finance Director, who generally leads the negotiations, the Assistant Finance Director and, at times, the Town’s labor counsel. Once a draft CBA is negotiated, it is given an airing at a public meeting and then, ultimately, is presented to the Town Council for consideration and approval. The Petitioner participated in the negotiation of the Town’s current CBA, which was approved by the Town Council in November 2010, just prior to the Petitioner’s first reelection as Town Administrator. The Petitioner represents that the current CBA, similar to the prior CBAs that were negotiated by her predecessors, contains a longevity clause that entitles each Town employee, upon attaining five (5) years of service, to receive a lump-sum payment based on a percentage of the employee’s base pay. The Petitioner further states that it is the longstanding policy of the Town, similar to many other towns and the State of Rhode Island, to treat non-union employees the same as union employees on issues of salary and benefits. Pursuant to this policy all Town employees, union and non-union alike, are entitled to receive the five-year longevity payment. The Petitioner states that longevity payments are calculated along with other employee salary and benefits for inclusion in the overall Town budget, which requires Town Council approval. Assuming that the budget is approved, at the time the longevity payment is to be made it is again submitted to the Town Council along with all other monthly bills for review and approval. Thereafter, the Petitioner submits a requisition to the payroll department to issue a check to the employee. Such checks, like all payroll checks, are stamped with the signature of the Petitioner. The instant request for an advisory opinion stems from the Petitioner’s own attainment of over five (5) years of continued service to the Town in December 2013, triggering her entitlement to the longevity payment. She represents that the last Town Administrator to attain five (5) years of service, Kenneth Bianchi, similarly received a longevity payment. However, given her role in negotiating the CBA and in the processing of longevity payments, the Petitioner seeks guidance from the Ethics Commission as to whether, and how, she may seek and process her own payment. Under the Code of Ethics, the Petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). She is also prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a family member, business associate, or any business by which she is employed or represents. Section 36-14-5(d). Although we have not addressed this specific issue previously, a somewhat analogous situation was presented in Advisory Opinion 2010-20. There, the Superintendent of the Rhode Island State Police asked whether he could participate in contract negotiations with the Rhode Island Troopers’ Association given that, through policy and custom, he would be entitled to receive the same accreditation bonus that was included in the Troopers’ current contract. Relying on the Petitioner’s representations that negotiations were led by attorneys for the Department of Administration and personnel from the state budget office, and that the Petitioner’s primary terms of employment were set forth in a separate and independent contract, the Ethics Commission opined that he could participate in the contract negotiations provided that he recused from discussions concerning the accreditation bonus. We are also guided by our prior reasoning in Advisory Opinion 2008-17. There, the Finance Director for the Town of Lincoln asked whether the Code of Ethics prohibited him from carrying out his duties to process payments for the Town’s legal notices that were carried in a newspaper owned by his brother. The Finance Director represented that his duties did not involve selecting the newspaper but only required him to process the payment vouchers that had been approved by the Town Administrator and the Town Council. Under those circumstances, the Ethics Commission determined that the Finance Director’s actions in making payments were ministerial in nature and did not involve the exercise of any discretionary authority that could affect the financial interests of his brother. Accordingly, the Commission opined that such actions would not violate the Code of Ethics. In the instant matter, the Petitioner’s representations are that her entitlement to a longevity payment is established by a longstanding contract provision and policy of the Town, both of which have been and continue to be subject to the ultimate approval of the Town Council. Her particular longevity payment requires Town Council approval during the budget process and again at the time of payment. Once approved, the physical processing of the longevity payment check is ministerial in nature, similar to the processing of the Petitioner’s regular payroll checks which also bear her signature stamp. Furthermore, although the Petitioner was involved in the Town’s 2010 negotiations over the current CBA that contains the longevity clause, she has faced the uncertainty of reelection twice since the Town Council’s adoption of that contract. Under these circumstances we do not think it was reasonably foreseeable that her 2010 participation in the CBA negotiations would result, two elections later, in her entitlement to a longevity bonus. Based on all of the above, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may initiate and, if approved by the Town Council, receive a longevity payment from the Town. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: 2010-20 2008-17 Keywords: Financial Interest