Advisory Opinion No. 2015-15 Approved: March 24, 2015 Re: Gena E. Bianco QUESTION PRESENTED : The Petitioner, a member of the Town of Johnston School Committee, a municipal elected position, requests an advisory opinion as to whether the Code of Ethics prohibits her from participating in contract negotiations with the Johnston Teachers’ Union, given that her spouse has served, for the past four years, as a soccer coach for one of the Town of Johnston’s Middle Schools. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of Johnston School Committee, a municipal elected position, is not prohibited by the Code of Ethics from participating in contract negotiations with the Johnston Teachers’ Union, notwithstanding that her spouse has served, for the past four years, as a soccer coach for one of the Town of Johnston’s Middle Schools and may serve again in the future. However, the Petitioner is required by the Code of Ethics to recuse from all School Committee discussions and voting relative to her spouse’s appointment as the Middle School’s soccer coach and any budgetary line item(s) involving coaching stipends. The Petitioner is a member of the Town of Johnston School Committee (“School Committee”), having begun her term of office in January 2015. She informs that her spouse, who is not employed as a teacher and is not a member of the Johnston Teachers’ Union (“Teachers’ Union”), has served, for approximately four years, as the Girls’ Soccer Coach at the Johnston Ferri Middle School (“Middle School”). The Petitioner explains that, each year, the Superintendent has recommended her spouse to the School Committee for its consideration and approval of his appointment as a soccer coach. The Petitioner further represents that her spouse’s term as coach is only for the fall, and he is paid a stipend at the conclusion of the season. She maintains that her spouse’s appointment is not guaranteed as the Superintendent must first recommend him to the School Committee every year, and then the School Committee must vote to approve said appointment. The Petitioner informs that the School Committee will soon be entering into contract negotiations with the Teachers’ Union for a contract with an effective date of September 1, 2015. The Petitioner represents that her spouse’s employment, which is not guaranteed for the fall, is separate and apart from these contract negotiations. She explains that, while the Collective Bargaining Agreement between the Johnston School Committee and the Teachers’ Union (“CBA”) addresses coaching and extra-curricular personnel, those provisions strictly apply to members of the Teachers’ Union who apply for said positions. The Petitioner informs that the Superintendent will only recommend the appointment of a non-union coach when no interested members of the Teachers’ Union respond to notices for coaching positions.[1] Furthermore, the Petitioner states that her spouse’s soccer coaching stipend is not part of the Teachers’ Union CBA, given that the coaching salaries listed thereunder apply only to members of the Teachers’ Union who apply to become coaches. She explains that the coaching stipend for non-union members such as her spouse is separately addressed as part of the budget allocation and, therefore, will not be a part of the forthcoming contract negotiations. Given her spouse’s prior service as a soccer coach for the Middle School and his possible future appointment to that role, the Petitioner seeks advice as to whether she may participate in School Committee contract negotiations with the Teachers’ Union. Commission Regulation 36-14-5004(b)(4) (“Regulation 5004”), entitled “Participation in Collective Bargaining/Employee Contracts,” under “Nepotism,” 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. The Petitioner’s spouse is a “person within . . . her family” as that term is defined by Regulation 5004(a)(2). Regulation 5004 prohibits the Petitioner from participating in collective bargaining negotiations that address or affect the employment, compensation, or benefits of her 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, 2015. Based on the Petitioner’s representations, she is not prohibited by Regulation 5004 from participating in contract negotiations, because those negotiations do not address or affect her spouse’s employment, given that her spouse is not a member of the collective bargaining unit and his employment and stipend fall outside the scope of the applicable contract. See A.O. 2013-7 (deciding that a member of the East Greenwich School Committee (“School Committee”) was 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 would take effect after the termination of his spouse’s “one year only” teaching position in the East Greenwich School Department). 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); A.O. 2011-14 (opining that a Foster-Glocester Regional (“FGR”) School Committee member was prohibited from participating in contract negotiations between the FGR School Committee and the Foster-Glocester Teachers’ Union, given that her husband was a teacher in the FGR school district and a member of the Foster-Glocester Teachers’ Union). Furthermore, given the likelihood that the Petitioner’s spouse will be appointed again as a soccer coach, we must next address how the Code of Ethics restricts the Petitioner’s participation in her spouse’s appointment and stipend. Regulation 5004(b)(1) speaks to the general Nepotism prohibitions: No person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family . . . is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. Regulation 5004(b)(3), entitled “Participation in Budgets,” provides: (A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member. (B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affect the employment, compensation or benefits of any person within his or her family or a household member 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. (C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget 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. Accordingly, should the Petitioner’s spouse’s appointment as a soccer coach come before the School Committee for approval and voting in the future, the Petitioner must recuse from participation in and voting on said appointment. Furthermore, based on the Petitioner’s representation that her spouse’s coaching stipend is part of the budget allocation, the Petitioner must also recuse from any discussions and voting on budgetary line items that relate in any way to coaching stipends for non-union personnel members, including her spouse. However, the Petitioner may vote on the budget as a whole. In sum, it is the opinion of the Ethics Commission that the Petitioner may participate in the School Committee’s contract negotiations with the Teachers’ Union, notwithstanding that her spouse has served, for the past four years, as a soccer coach for the Middle School and may serve again in the future. However, the Petitioner is required by the Code of Ethics to recuse from all School Committee discussions and voting relative to her spouse’s appointment as the Middle School’s soccer coach and any budgetary line item(s) involving coaching stipends. Notice of recusal should be filed with the Ethics Commission in accordance with § 36-14-6. 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 : § 36-14-6 Commission Regulation 36-14-5004 Related Advisory Opinions : A.O. 2013-7 A.O. 2011-17 A.O. 2011-14 Keywords : Budgets Collective Bargaining Line Item Negotiations Nepotism [1] Article XXXV of the current CBA, entitled “COACHES AND EXTRA-CURRICULAR PERSONNEL,” Section 1 addresses “Terms of Employment.” This section provides: “Whenever qualified members of the bargaining unit are available, they shall be given preference over personnel from outside the bargaining unit for all positions.”