Advisory Opinion No. 2017-25 Rhode Island Ethics Commission Advisory Opinion No. 2017-25 Approved: June 6, 2017 Re: The Honorable Michael A. Morin QUESTION PRESENTED: The Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, who is employed as a firefighter in the City of Woonsocket, a municipal employee position, requests an advisory opinion regarding whether he may participate and vote on legislation that would impact firefighters across the state. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island House of Representatives who is employed as a firefighter in the City of Woonsocket, may participate and vote on legislation that would impact firefighters across the state pursuant to the Code of Ethics’ class exception. The Petitioner is an elected member of the Rhode Island House of Representatives. He states that he is an active firefighter, employed by the City of Woonsocket (“Woonsocket”), and is a member of Woonsocket Firefighters Local #732, IAFF (“Local 732”). As such, the Petitioner’s terms of employment are set forth in a collective bargaining agreement between Local 732 and Woonsocket. The Petitioner represents that legislation is currently pending in the General Assembly that would address the enforceability of firefighter collective bargaining agreements that have expired. In particular, two bills have been introduced to amend R.I. Gen. Laws § 28-9.1-17. The first bill, 2017 – H 5597, would require that expired firefighter collective bargaining agreements remain in full force and effect until a successor agreement becomes operative. The second bill, 2017 – H 5973 and its companion S 0288, would permit the parties to an expired firefighter collective bargaining agreement to agree, in writing, to continue all contractual provisions until a successor agreement is reached. Given that he is a firefighter whose terms of employment are set forth in a collective bargaining agreement that could be impacted by the passage of such legislation, the Petitioner asks whether the Code of Ethics permits his participation and vote on the bills in the House of Representatives. A person subject to the Code of Ethics 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 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 he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, a public official may not use his public office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics limit the Petitioner’s participation in the legislative process as to the subject bills, the Commission must first ascertain whether the Petitioner is likely to be financially impacted by their passage or failure. Here, the Petitioner is a firefighter who is part of a collective bargaining agreement with Woonsocket. The legislation he references, if passed, would extend the enforceability of his union’s collective bargaining agreement beyond the agreement’s stated term, pending the negotiation of a successor agreement. Given that such agreements govern the terms and conditions of the Petitioner’s employment as a firefighter in Woonsocket, we find that the passage of the referenced legislation is likely to result in a financial impact to the Petitioner. However, given that the legislation applies equally to all firefighters subject to a collective bargaining agreement and does not impact the Petitioner individually, 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 his or her duties in the public interest and of his or her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to him or her or any person within his or 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 justifies the application of the class exception, the Commission will consider the totality of the circumstances. Among the most important factors to be 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. The Commission considered a somewhat analogous set of facts in Advisory Opinion 93-55. There, a member of the Rhode Island Senate who was employed as a public school teacher asked whether he was permitted to participate and vote on bills regulating teacher contract disputes and strikes. The Commission applied the class exception, writing that “since the legislation concerning teacher contract disputes and strikes by public school teachers would affect all teachers in like manner, we find that under Code § 36-14-7(b) [the petitioner] may participate and/or vote without violation of the Code of Ethics.” See also A.O. 2014-16 (member of Providence City Council, who is employed at a Providence hotel, may participate and vote on proposed ordinance to increase the minimum wage for the city’s hotel employees given that she is in a class of over 1,000 similarly situated hotel employees who will all be impacted equally); A.O. 2004-27 (State Senator who is a pharmacist and pharmacy owner may participate and vote on legislation that generally impacts pharmacies and health care if he is financially impacted to no greater or lesser extent than similarly situated pharmacists or facility owners); A.O. 98-40 (member of the House of Representatives who is married to a dentist may participate and vote on legislation relating to the practice of dentistry since the legislation at issue affects all dentists within Rhode Island to the same extent); A.O. 98-14 (member of the House of Representatives who owns a restaurant which serves alcohol may vote on legislation relating to the legal alcohol limit since the legislation at issue affects all members of the restaurant, bar and hospitality industry to the same extent); A.O. 91-25 (State Senator who is a practicing attorney is not prohibited from sponsoring and voting on legislation to prohibit insurance companies from restricting policyholders from filing personal injury actions against family members, given that he is impacted by legislation to no greater extent than any other similarly situated member of the legal profession). In the present matter, the subject legislation would impact all Rhode Island firefighters who collectively bargain, either permitting or mandating expired contract terms to continue until a successor agreement is reached. The Petitioner will not be impacted to any greater or lesser extent than other similarly situated firefighters. It is therefore 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 36-14-7(b) of the Code of Ethics. The Petitioner may participate and vote on the subject legislation, and on other legislation having the same broad-based impact on all of the state’s firefighters. However, the Petitioner should either recuse or seek further guidance from the Ethics Commission relative to legislation that impacts a smaller subclass of firefighters, or that impacts him individually or differently than other firefighters. Notice of recusal, when necessary, shall be in accordance with section 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) § 36-14-7(b) Other Related Authority: § 28-9.1-17 Related Advisory Opinions: A.O. 2014-16 A.O. 2004-27 A.O. 98-40 A.O. 98-14 A.O. 91-25 A.O. 93-55 Keywords: Class Exception