Advisory Opinion No. 2014-16 Rhode Island Ethics Commission Advisory Opinion No. 2014-16 Approved: June 3, 2014 Re: Carmen Castillo QUESTION PRESENTED: The Petitioner, a member of the Providence City Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her participation and vote in the consideration of a proposed ordinance which would increase the minimum wage for Providence hotel employees, given that she is an employee of the Omni Providence Hotel. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Providence City Council, a municipal elected position, is not prohibited by the Code of Ethics from participating and voting in the consideration of a proposed ordinance which would increase the minimum wage for Providence hotel employees, notwithstanding that she is an employee of the Omni Providence Hotel. The Petitioner is a member of the Providence City Council (“City Council”), having been elected in 2011. The Petitioner also serves as a member of the City Ordinance Committee, a subcommittee of the City Council. In her private capacity, the Petitioner is employed, full-time, as a housekeeper for the Omni Providence Hotel. The Petitioner represents that, in connection with her employment, she is a member of Unite Here Local 217, a union of hotel and food service workers in Rhode Island and Connecticut. She states that she began her present employment in 1994 and, pursuant to the current collective bargaining agreement, she earns $14.66 per hour. The Petitioner informs that on April 17, 2014, in accordance with the Providence Home Rule Charter, a proposed ordinance was introduced to the City Council.[1] The ordinance proposes to increase the minimum wage to $15 per hour for all employees of any Providence hotel operating with at least 25 rooms and an in-house component such as housekeeping services. The Petitioner represents that the proposed ordinance would apply to ten Providence hotels and approximately 1,000 hotel workers. She further informs specifically that the Providence Omni Hotel, her employer, has approximately 200 employees. The Petitioner states that the present wage rates of housekeeper employees in Providence hotels range from $8.50 to $15.46. At the April 17, 2014 City Council meeting, the proposed ordinance was referred to the City Ordinance Committee. Cognizant of the Code of Ethics and given her private employment at a Providence hotel, the Petitioner seeks advice as to whether the Code of Ethics would prohibit her participation in the City Ordinance Committee’s and the City Council’s consideration of a proposed ordinance which would increase the minimum wage for Providence hotel employees. A person subject to the Code of Ethics 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 the Petitioner 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). Additionally, a public official may not use her public office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics are implicated the Commission must first ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. Here, the Petitioner is 1 of 1,000 hotel workers that will be impacted by the proposed minimum wage ordinance. Therefore, any action taken on the proposed ordinance by the City Council is likely to result in a financial impact to the Petitioner. However, given the large number of persons who will be similarly impacted by the ordinance, we will consider the application of the “class exception” to this particular set of circumstances. Section 36-14-7(b) of the Code, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of her duties in the public interest and of her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to her or any person within her family or any business associate, or any business by which the person is employed or which the person represents, as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group. When determining whether any particular circumstance supports and justifies the application of the class exception, the Commission will consider the totality of the circumstances. Among the important factors considered are: 1) the description of the class; 2) the size of the class; 3) the function or official action being contemplated by the public official; and 4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. In the present matter, the Petitioner is a member of a class of 1,000 Providence hotel workers to which the proposed ordinance would apply. The Petitioner’s contemplated official action, as a member of the City Council and City Ordinance Committee considering the proposed ordinance, will have a foreseeable impact upon each member of the class in that, the proposed ordinance, if passed, would result an increase in the minimum wage of all Providence hotel workers with all other aspects of their current collective bargaining agreements remaining in effect. The foreseeable impact to the Petitioner is to no greater extent than to any other similarly situated member of the class, given that the ordinance proposes a set increase in the minimum wage for all similarly situated Providence hotel workers. Thus, considering the totality of the circumstances, it is the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 7(b) of the Code of Ethics. The Commission has applied the class exception to other somewhat analogous cases. See A.O. 2013-5 (opining that a member of the East Providence City Council could serve on the City’s Police and Fire Pension Fund Board, provided that her official actions did not affect her husband to any greater or lesser extent than any other similarly situated beneficiary of the pension fund); A.O. 2010-51 (opining that a member of the State Board of Registration for Professional Engineers could participate in the Board’s determination as to tasks that may or may not be performed by professional engineers and professional land surveyors); A.O. 2008-16 (opining that the Director of Administration of Providence, who had a vested interest in the municipal employees’ pension plan administered by the state, could serve on the special House Commission to study the state retirement system, given that the petitioner would be financially impacted to no greater or lesser extent than any other similarly situated participants in the state and municipal employees’ pension plan). Accordingly and based upon our application of the class exception, the Petitioner is not prohibited by the Code of Ethics from participating and voting in the consideration of a proposed ordinance which would increase the minimum wage for Providence hotel employees, notwithstanding that she is an employee of the Omni Providence Hotel. 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) §36-14-7(b) Related Advisory Opinions: A.O. 2013-5 A.O. 2010-51 A.O. 2008-16 Keywords: Class Exception Private Employment