Advisory Opinion No. 2017-52 Rhode Island Ethics Commission Advisory Opinion No. 2017-52 Approved: November 14, 2017 Re: Joseph C. Perry Jr. QUESTION PRESENTED: The Petitioner, a member of the Tiverton Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in contract negotiations between the Town of Tiverton and the local bargaining unit for Tiverton’s firefighters, given that he is a retired Tiverton firefighter who receives a continuing health care benefit. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Town Council, a municipal elected position, may participate in contract negotiations between the Town of Tiverton and the local bargaining unit for Tiverton’s firefighters, provided that the Petitioner will not be financially impacted by such negotiations. The Petitioner is a member of the Tiverton Town Council (“Town Council”). He informs in 2004 he retired from service as a Town of Tiverton (“Town” or “Tiverton”) firefighter, and that pursuant to the collective bargaining agreement in effect at that time he became entitled to receive health care coverage for the rest of his life. The Petitioner represents that the Town is currently engaged in collective bargaining with Local 1703 of the International Association of Fire Fighters (“IAFF”) relative to a contract for the Town’s current firefighters. The Petitioner states that the health care benefit for already-retired firefighters, such as himself, is not expected to be raised or be a part of the current negotiations. However, the Petitioner represents that if such discussions concerning his health care benefit were to arise, he would recuse himself. Given these representations, the Petitioner asks whether the Code of Ethics permits his participation in these contract negotiations as a member of the Town Council. Under the Code of Ethics, a public official 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). An official has an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). In his correspondence and in conversations with Commission staff, the Petitioner has clearly represented that he does not stand to be financially impacted by the current collective bargaining negotiations with the IAFF. For this reason, the aforementioned provisions of the Code of Ethics do not require his recusal from participation in the contract negotiations. See A.O. 2007-10 (Lincoln Town Administrator may participate in contract negotiations between the Town and the International Brotherhood of Police Officers, notwithstanding that he is a retired member of the Town’s police department and receives a defined pension and health insurance benefit pursuant to a prior contract, because he did not stand to be financially impacted by the current negotiations). Compare A.O. 2005-28 (opining that the Mayor of the Town of Cumberland could not participate in contract negotiations between the Town and the Fraternal Order of Police given his representation that as a retired member of the Town’s police department he would be financially impacted by changes to the retirement sections of the police contract). Based on the above representations and consistent with our past advisory opinions, the Commission opines that the Petitioner may participate in the Town Council’s discussions relative to contract negotiations between the Town and the IAFF, notwithstanding that the Petitioner is a retired member of the Town’s fire department and receives continuing health care pursuant to a prior collective bargaining agreement, since he will not be financially impacted by the current negotiations. However, in the unlikely event that the current negotiations venture into a discussion of the Petitioner’s health care benefit, the Petitioner must recuse from participation or seek further guidance from the Ethics Commission. 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) Regulation 36-14-7001 Related Advisory Opinions A.O. 2007-10 A.O. 2005-28 Keywords Financial Interest