Advisory Opinion No. 2019-19 Rhode Island Ethics Commission Advisory Opinion No. 2019-19 Approved: March 26, 2019 Re: Kyle Adams QUESTION PRESENTED: The Petitioner, a member of the Warwick School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics restricts his participation in various School Committee matters, given that his mother is a teacher in the Warwick School Department, a member of the Warwick Teachers’ Union, and the Recording Secretary of the Union’s Executive Board of Directors. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Warwick School Committee, a municipal elected position, is prohibited by the Code of Ethics from participating in any School Committee matter in which his mother is a party or participant, or in which she will be financially impacted or will receive an employment advantage. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his mother. Further, the Petitioner is prohibited from participating in contract negotiations with the Union, given that his mother is a member and an officer of that Union. Lastly, the Petitioner is prohibited from participating in discussions and decision-making relative to any budget line items that address or affect the employment, compensation or benefits of his mother. However, the Petitioner may participate in the School Committee’s discussion and decision making relative to approving or rejecting the entire budget or the Union contract as a whole. The Petitioner was elected to serve on the Warwick School Committee (“School Committee”) on November 6, 2018. He represents that his mother is a teacher in the Warwick School Department (“School Department”), a member of the Warwick Teachers’ Union (“Union”), and the Recording Secretary of the Executive Board of Directors of the Union. The Petitioner represents that as its Recording Secretary, his mother is an officer of the Union and receives a stipend for her services. The Petitioner states that that he has never previously served as a member of the School Committee and has no experience or knowledge regarding specific matters that could come before the School Committee that may financially impact his mother. Therefore, given this set of facts, the Petitioner seeks general guidance as to the prohibitions within the Code of Ethics that may restrict his participation in certain School Committee matters. Under the Code of Ethics, 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. R.I. Gen. Laws § 36-14-5(a). An official will have 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, a family member, a business associate, an employer, or any business which the public official represents. Section 36-14-7(a); Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Section 36-14-5(d) further prohibits an official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his employer, business associate, or any person within his family. Participation in Matters That Involve or Financially Impact the Petitioner’s Mother Under the general nepotism prohibitions of the Code of Ethics, specifically Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family or any household member 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. Regulation 1.3.1(B)(1). The definition of “any person within his [] family” specifically includes “mother.” Regulation 1.3.1(A)(2). Notably, Regulation 1.3.1(B)(1) not only prohibits actions by a public official that would financially impact his family member, but also applies when such actions involve a family member as a party or participant, regardless of whether or not there will be a financial impact to the family member. Furthermore, under Regulation 1.3.1(B)(1) a public official is prohibited from participating in matters that may bestow an employment advantage upon a family member. Such an advantage, which might not appear to be a direct financial gain for the official’s family member could be some type of opportunity (such as an educational or travel experience) or resource (such as access to enhanced technology) that the family member would not otherwise have had. Thus, in the event that the Petitioner’s mother is a party to or participant in a matter before the School Committee, or will be directly financially impacted or will obtain an employment advantage by the School Committee’s decision-making, the Petitioner is required to recuse in accordance with section 36-14-6. See, e.g., A.O. 2013-8 (opining that a Bristol Town Council member was prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position); A.O. 2009-1 (opining that a Scituate Town Council member was prohibited by the Code of Ethics from participating in Town Council matters involving S & C Collins Bus Company, Inc. (“Collins Bus”), one of the three companies that provided school busing services to the Scituate School Department, given that Collins Bus was owned by his mother and he was an employee and officer of Collins Bus). Participation in Supervision and Evaluation of Petitioner’s Mother Regulation 1.3.1 prohibits a public official from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, or from delegating such tasks to a subordinate, except in accordance with advice received in a formal advisory opinion from the Ethics Commission. Regulation 1.3.1(B)(2)(a) & (b). The Commission has consistently opined that recusal is warranted in matters regarding the employment-related discussions and hiring processes involving family members. See A. O. 2016-26 (opining that a Lieutenant in the East Greenwich Fire Department was not prohibited from serving in that position upon the hiring of his brother as a Probationary Firefighter in the same Fire Department, provided that certain procedures were followed so that the Lieutenant was removed from personnel decisions or other matters that particularly affected his family member); A.O. 2009-34 (opining that the Chief of the West Warwick Fire Department was not prohibited from serving in that position if his son-in-law was a successful candidate for a firefighter position within the same department, provided that certain procedures were followed so that the Petitioner was removed from personnel decisions or other matters that particularly affect his family member, given that the alternate chain of command proposed by the petitioner effectively insulated him from decisions directly affecting his son-in-law). Accordingly, the Petitioner is prohibited from participating in matters that involve the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his mother. Participation in Budgets Regulation 1.3.1 also addresses a public official’s participation in budgets and contract negotiations that could financially impact or involve the public official’s family member. Specifically, a public official is prohibited from participating “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 [] family.” Regulation 1.3.1(B)(3)(a). However, Regulation 1.3.1(B)(3)(c) provides that the Petitioner is not prohibited from participating “in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his [] family . . . 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.” In Advisory Opinion 2010-35, the Commission opined, inter alia, that a Pawtucket School Committee member whose brother and sister-in-law were teachers in the School District was prohibited by the Code of Ethics form participating in any School Committee discussion or voting on line items in the School Department budget that would address or affect the employment, compensation or benefits of his brother and sister-in-law. However, the petitioner could participate in the School Committee’s discussion and decision making relative to approving or rejecting the entire budget as a whole. The basis for allowing participation relative to the budget as a whole is an assumption that a vote on the entire budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code of Ethics. See also A.O. 2007-30 (opining that an East Providence School Committee member was prohibited by the Code of Ethics from participating in any budgetary line items relative to bus monitors, given that he had a family member who was employed as a bus monitor, but could vote to approve or reject the budget as a whole). Therefore, while the Petitioner is prohibited from participating in the School Committee’s discussions and decision-making relating to budget line items that would address or affect the employment, compensation or benefits of his mother, he may participate in the School Committee’s vote to approve or reject the entire budget as a whole. Participation in Collective Bargaining/Employee Contracts Regulation 1.3.1(B)(4) also addresses a public official’s participation in collective bargaining/employee contracts. It specifically prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his family or a household member. 1.3.1(B)(4)(a). However, a public official 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 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. 1.3.1(B)(4)(b) Regulation 1.3.1(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. For example, in Advisory Opinion 2011-14, the Commission opined 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 Foster-Glocester Teachers’ Union, given that her husband was a teacher in the Foster-Glocester Regional School District and a member of the Foster-Glocester Teachers’ Union. However, the petitioner could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and Foster-Glocester Teachers’ Union, 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 Foster-Glocester Teachers’ Union. See also A.O. 2018-49 (opining that a member of the Cumberland School Committee was prohibited from participating in the negotiation of the teachers’ union contract but could participate in the vote to ratify the contract in its entirety, provided that his spouse would be 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); A.O. 2013-44 (opining that a North Providence School Committee member was prohibited by the Code of Ethics from participating in the School Committee’s discussion and vote regarding whether to request arbitration for the contract negotiations with the Teachers’ Union, given that his daughter was a member of the Teachers’ Union and such a vote was part of the negotiations process). Therefore, the Petitioner is prohibited by Regulation 1.3.1(B)(4)(a) from participating in contract negotiations with the Union because his mother is a member and an officer of the Union. However, pursuant to Regulation 1.3.1(B)(4)(b), the Petitioner may participate in the School Committee’s discussion and decision-making relative to approving or rejecting the contract in its entirety, once it has been negotiated by others. 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 to not constitute a substantial conflict of interest in violation of the Code of Ethics. Although the Petitioner is permitted to participate in the overall vote to approve or reject the contract as a whole, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. As such, 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 mother. Should those circumstances arise, the Petitioner must recuse from further participation, pursuant to section 36-14-6, or seek further guidance from the Ethics Commission. Conclusion In conclusion, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in any School Committee matters in which his mother is a party or participant, or in which she will be financially impacted or will receive an employment advantage. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his mother. Further, the Petitioner is prohibited from participating in contract negotiations with the Union, given that his mother is a member and an officer of that Union. Lastly, the Petitioner is prohibited from participating in discussions and decision-making relative to any budget line items that address or affect the employment, compensation or benefits of his mother. However, the Petitioner may participate in the School Committee’s discussion and decision making relative to approving or rejecting the entire budget or the Union contract as a whole. Notice of recusal shall be filed with the Ethics Commission in accordance with section 36-14-6. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. 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) Commission Regulation 520-RICR-00-00-1.1.5 Commission Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2018-49 A.O. 2016-26 A.O. 2013-44 A.O. 2013-8 A.O. 2011-14 A.O. 2010-35 A.O. 2009-34 A.O. 2009-1 A.O. 2007-30 Keywords Nepotism Collective Bargaining Negotiations Budget Line Item Recusal