Advisory Opinion No. 2018-27 Rhode Island Ethics Commission Advisory Opinion No. 2018-27 Approved: May 15, 2018 Re: Derek M. Silva QUESTION PRESENTED: The Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, who is also a Lieutenant with the Providence Fire Department, a municipal employee position, and a Vice President and Legislative Agent for the Providence Fire Fighters Local 799 of the International Association of Fire Fighters, requests an advisory opinion regarding what limitations the Code of Ethics places upon his participation in Rhode Island State Labor Relations Board matters involving firefighters across the state. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, who is also a Lieutenant with the Providence Fire Department, a municipal employee position, and a Vice President and Legislative Agent for the Providence Fire Fighters Local 799 of the International Association of Fire Fighters, is prohibited by the Code of Ethics from participation as a member of the Rhode Island State Labor Relations Board in matters that financially impact Providence Fire Fighters Local 799 or for which a representative or legal counsel for Local 799 appears or presents evidence or argument. However, the Code of Ethics does not prohibit his participation in Rhode Island State Labor Relations Board matters involving a different local union or its firefighter members. The Petitioner represents that he was recently appointed to the Rhode Island State Labor Relations Board (“Board”). The Petitioner explains that, by statute, the Board has seven (7) members: three (3) representatives of labor; three (3) representatives of management; and one (1) representative of the public, and that he was appointed to serve as a representative of labor. R.I. Gen. Laws § 28-7-4. He further informs that the Board’s jurisdiction is limited to labor matters involving municipal, state, and quasi-state employers. Among other things, the Board reviews claims by local union members involving unfair labor practices by their employers. In his private capacity, he is employed as a Lieutenant with the Providence Fire Department and is the Vice President and Legislative Agent for the Providence Fire Fighters Local 799 (“Local 799”) of the International Association of Fire Fighters (“IAFF”). The Petitioner states that all Providence firefighters, with the exception of the administrative officers, are members of Local 799. He further explains that when the Board reviews matters involving Local 799 firefighters, such firefighters are always represented by a Local 799 agent or its legal counsel. Under the Code of Ethics, a public official must recuse himself from participation when his business associate or employer, or a person authorized by his business associate or employer, appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 36-14-5002 (“Regulation 5002”); section 36-14-5(f). The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). A public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). The Commission has repeatedly concluded that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2012-9; A.O. 2010-25; A.O. 2009-10; A.O. 2008-35. In the present matter, the Petitioner is a business associate of Local 799 because he holds a leadership position in that organization as its Vice President and serves as its Legislative Agent. As such, Regulation 36-14-5002 and Section 36-14-5(f) require that the Petitioner recuse from all Board matters that financially impact Local 799 or for which a representative or legal counsel for Local 799 appears or presents evidence or argument before the Board. See A.O. 98-44 (opining, inter alia, that a Commissioner on the Fire Safety Code Board of Appeal and Review must recuse from matters involving property owned by IAFF, Local 799, given that he was the President of Local 799 and, thus, a business associate of that entity). However, the Code of Ethics does not prohibit his participation in Board matters involving a different local union or its members. A.O. 96-92 (finding that a member of Rhode Island Laborers’ Local 1215 who served as the Chairperson of the Westerly Housing Authority Board of Commissions could participate in the consideration of a contract with Rhode Island Laborers’ Local 1217, notwithstanding the fact that he was a member of a different local of the same union since he was not a business associate of Local 1217). The Petitioner shall remain vigilant in identifying any matters coming before the Board in which it is reasonably foreseeable that his business associate, Local 799, is involved or may be financially impacted and shall either recuse or seek further guidance from the Commission. The Petitioner is further advised that should his position in Local 799 or IAFF change to seek further guidance from the Ethics Commission. Notice of recusal shall be filed with the Ethics Commission 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: § 36-14-2(3) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Other Related Authority: § 28-7-4 Related Advisory Opinions: A.O. 2012-9 A.O. 2010-25 A.O. 2009-10 A.O. 2008-35 A.O. 98-44 A.O. 96-92 Keywords: Business Associate Recusal Unions [1] This advisory opinion should be read in conjunction with advisory opinion 2018-55.