Advisory Opinion No. 2018-49 Approved: September 25, 2018 Re: Paul DiModica QUESTION PRESENTED The Petitioner, a member of the Cumberland School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the School Committee’s vote regarding: (1) the ratification of the Cumberland Teachers’ Association contract, given that his spouse is a member of the Teachers’ Association; and (2) layoffs and rehires of teachers, given that his spouse is a teacher in the Cumberland School District. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Cumberland School Committee, a municipal elected position, may participate in the School Committee’s vote regarding the ratification of the Cumberland Teachers’ Association contract in its entirety, notwithstanding that his spouse is a member of the Teachers’ Association, provided that his spouse is impacted by the contract as a member of a significant and definable class of persons and not individually or to any greater extent than other similarly situated members of the teachers’ union. The Petitioner may not, however, participate in the School Committee’s vote, or in any discussions or decision-making, regarding layoffs and rehires of teachers, given that his spouse is a teacher in the Cumberland School District. The Petitioner is a member of the Cumberland School Committee (“School Committee”), a municipal elected position. The Petitioner represents that his spouse was hired as a teacher for the Cumberland School Department on June 20, 2018, and that he did not participate in any discussions or decision-making relative to his spouse’s hire.[1] The Petitioner’s spouse became a member of the Cumberland Teachers’ Association (“teachers’ union”) on August 29, 2018. For purposes of clarity, we will address the Petitioner’s questions individually 1. Does the Code of Ethics prohibit the Petitioner from participating in the School Committee’s vote on whether to ratify the teachers’ union contract, given that his spouse is a member of the teachers’ union? The Petitioner states that the School Committee has been negotiating a new contract with the teachers’ union. Negotiations on the part of the School Committee have been through a negotiating subcommittee consisting of the Superintendent, the Human Resources Director, the Business Manager, and a School Committee member who was neither the Petitioner nor someone appointed by the Petitioner. The Petitioner explains that, on September 13, 2018, the proposed contract was presented to the School Committee’s fiscal subcommittee for preliminary approval. The Petitioner states that the contract, having survived the vote by the fiscal subcommittee, will next be presented to the full School Committee for a vote on ratification. Given this set of facts, the Petitioner seeks guidance regarding whether the Code of Ethics prohibits his voting on ratification of the contract as a whole. Commission Regulation 36-14-5004 (“Regulation 5004”)[2] contains specific regulations aimed at curbing nepotism. Regulation 5004(b)(4) specifically 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. Regulation 5004(b)(4)’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the impact of decisions as to individual components of a contract can be difficult to predict. For that reason, an official’s participation in a contract issue that is seemingly unrelated to a family member can have a resulting impact on other areas of the contract that would directly affect the family member. The Commission has issued numerous advisory opinions in which it prohibited public officials from participating in contract negotiations that addressed or affected the employment of a person within their family. However, Regulation 5004(b)(4)(B) provides that 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 that has been negotiated by others, 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. See A.O. 2011-17 (opining that a Tiverton Town Council member was prohibited by the Code of Ethics from participating in contract negotiations with IBPO Local 406, given that his father was a special officer for the Tiverton Police Department; however, he could participate in the Town Council’s decision to accept or reject a contract in its entirety once negotiated by the Town Administrator and Local 406, provided that his father was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent that other similarly situated members of Local 406); A.O. 2011-14 (opining that a member of the Foster-Glocester Regional School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the teachers’ union, given that her husband was a member of the teachers’ union, but could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by others, provided that her husband was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of the teachers’ union). The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as not to constitute a substantial conflict of interest in violation of the Code. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in the negotiation of the teachers’ union contract. The Petitioner may, however, participate in the vote to ratify the contract in its entirety, provided that his spouse is impacted by the contract 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. Although the Petitioner is permitted to participate in the overall vote to approve or reject the contract, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact his spouse. In such circumstances, the Petitioner must recuse from further participation pursuant to § 36-14-6 or seek further guidance from the Ethics Commission. 2. Does the Code of Ethics prohibit the Petitioner from participating in the School Committee’s vote regarding layoffs and rehires of teachers, given that his spouse is a teacher in the Cumberland School District? The Petitioner informs that annually each February the School Department compiles a list of teachers to be laid off, which includes all non-tenured teachers, usually numbering 30 to 50 individuals. The Petitioner’s spouse is a non-tenured teacher whose name may appear at some point on a layoff and subsequent rehire list. The Petitioner seeks guidance regarding whether, in the event his spouse’s name appears on such a list, his participation in voting is prohibited by the Code of Ethics. Pursuant to Regulation 5004(b)(1), a public official may not participate in any matter as part of his public duties if “any person within his or her family” is a participant or party, or if there is reason to believe that a family member will be financially impacted or will obtain an employment advantage. Furthermore, a public official may not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, nor may he delegate such tasks to a subordinate. Regulation 5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes “spouse.” See Regulation 36-14-5004(a)(2). The Code of Ethics’ nepotism provisions are triggered here because the Petitioner’s spouse is a “person within [the Petitioner’s] family.” Regulation 5004(a)(2). The Commission has consistently opined that recusal was warranted in matters regarding the employment-related discussions and hiring processes involving family members. See A.O. 2011-32 (opining that the Commissioner of the Rhode Island Department of Public Safety and Superintendent of the Rhode Island State Police was required to recuse from decisions that impacted his son’s finances or terms of employment with the Rhode Island State Police); A.O. 2010-46 (opining that a member of the Chariho Regional School Committee was prohibited from participation in the School Committee’s discussion and vote relative to the implementation of a performance-based compensation plan to replace longevity payments for school and district administrators, given that his first cousin was an administrator in the district). Presently, the Petitioner’s spouse’s name does not appear on any layoff or rehire list submitted to the School Committee for official action. However, given the Petitioner’s representation that such lists, complied each February, include all non-tenured teachers, of which his spouse is a member, the Commission will address the question at this time. Voting on a list of teachers who are to be laid off or rehired, should either of which contain his spouse’s name, would constitute participation in a determination about whether his spouse would either derive a direct monetary gain (by being rehired) or suffer a direct monetary loss (by being laid off). Accordingly, the Petitioner must recuse from participating in the School Committee’s discussion and vote regarding layoffs and rehires of teachers from lists on which his spouse’s name may appear. Notice of recusal must 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 5004 Related Advisory Opinions: A.O. 2011-32 A.O. 2011-17 A.O. 2011-14 A.O. 2010-46 Keywords: Contracts Family: Public Employment Nepotism Recusal Unions/Bargaining Unit [1] The Petitioner included a copy of his signed Statement of Conflict of Interest with his request for an advisory opinion. [2] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 5004 now corresponds to Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004).