Advisory Opinion No. 2019-3 Rhode Island Ethics Commission Advisory Opinion No. 2019-3 Approved: January 8, 2019 Re: Sarah Markey QUESTION PRESENTED: The Petitioner, a member of the South Kingstown School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics restricts her participation in various School Committee matters given her employment with the National Education Association of Rhode Island (“NEARI”). RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the South Kingstown School Committee, a municipal elected position, who is employed by NEARI, is prohibited by the Code of Ethics from participating in School Committee matters relating to the negotiation and approval of school department contracts with NEARI local bargaining units, and also must recuse from participation in grievance hearings involving NEARI members. The Petitioner was elected to serve on the South Kingstown School Committee on November 6, 2018. In her private capacity she is employed by NEARI as an Assistant Executive Director/UniServ (UniServ).[1] The Petitioner states that her responsibilities as a NEARI employee involve working with ten local bargaining units across Rhode Island, but she is not assigned to work with local bargaining units representing employees of the South Kingstown School Department. She notes that she does not intend to participate in any School Committee negotiations with NEARI bargaining units, nor participate in any grievance hearings involving NEARI members. Beyond those matters, the Petitioner seeks guidance as to whether she may participate in other School Committee discussions and voting relative to the school district budget, facilities, administration evaluation and contracts, personnel appointments and leave, staff lay-offs and overall votes to approve or reject collective bargaining agreements. Under the Code of Ethics, a public official must recuse herself from participation in discussions and voting on matters for which the official’s employer, or her employer’s authorized representative, appears or presents evidence or arguments before her public agency. 520-RICR-00-00-1.2.1(A)(2) & (3) Additional Circumstances Warranting Recusal (36-14-5002). In addition, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws 36-14-5(a). Such a substantial conflict of interest exists if an official has reason to believe that her employer, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Finally, a public official may not use her public position or confidential information received through her public position to obtain financial gain for herself or her employer. Section 36-14-5(d). The Ethics Commission considered a somewhat analogous set of facts and question presented in Advisory Opinion 2011-47. There, a member of the Rhode Island Board of Governors for Higher Education (“RIBGHE”), who was similarly employed by NEARI as an Assistant Executive Director/UniServ, asked whether he could participate in RIBGHE discussions and voting relating to ongoing contract negotiations and approvals of collective bargaining agreements with local NEARI bargaining units. Because the petitioner’s employer, NEARI, was involved in negotiating the collective bargaining agreements, and these agreements were likely to financially impact NEARI and its members, the Ethics Commission opined that the petitioner was prohibited from participating in RIBGHE discussions or voting relative to the ongoing contract negotiations or the approval of any collective bargaining agreements negotiated with local NEARI bargaining units. Here, the Petitioner has already indicated that she will not participate in the School Committee’s contract negotiations with NEARI bargaining units. Consistent with our advice in A.O. 2011-47, such recusal is required and also extends to the School Committee’s discussions and voting relative to providing direction to its negotiating teams as well as to its approval or rejection of any final agreements reached with NEARI bargaining units. In short, the Petitioner must recuse from all aspects of the School Committee’s contract negotiating process with NEARI. The Petitioner also notes that she plans to recuse herself from participating in School Committee grievance hearings brought by school district employees who are members of the local NEARI bargaining unit, given that union members are generally represented at grievance hearings by a NEARI employee or representative. Such recusal is required under the Code of Ethics where NEARI employees or agents appear to represent the employee, present evidence or make arguments before the School Committee. Upon the Petitioner’s recusal in any of the above situations, she is required to complete a statement of conflict of interest, sometimes called a recusal form, pursuant to section 36-14-6, describing the matter pending before the School Committee and the nature of her conflict of interest. This completed statement shall be delivered forthwith to the Ethics Commission where it will be kept on file as a public document. As to other issues that may come before the School Committee, such as budgets, facilities, administration evaluation and contracts, personnel appointments and leave, and staff lay-offs, the Petitioner represents that NEARI does not generally make an appearance before, or presentation to, the School Committee. Even in the absence of such appearance or participation, the Petitioner is directed to recuse from any discussions and decision-making which is likely to result in her employer, NEARI, deriving a direct monetary gain or suffering a direct monetary loss. See A.O. 2009-1 (opining that a member of the Scituate Town Council must recuse from matters before the Town Council concerning school related issues involving the financial interests of his employer that provided busing services to the Scituate School Department); A.O. 2008-56 (opining that a member of the Foster School Committee must recuse herself when the financial interests of her employer appeared before the School Committee); A.O. 2002-74 (opining that a state senator, who was also a union employee, must recuse from participating in matters that would directly affect his union employer). We note here that while NEARI’s membership in South Kingstown could conceivably increase or decrease based on teacher/personnel retention or lay-off decisions, such speculative and indirect financial impacts would likely be insufficient, standing alone, to require the Petitioner’s recusal under the Code of Ethics.[2] In the absence of a direct financial interest, the fact that NEARI may be generally interested in issues involving the school budget, facilities, administration, personnel appointments and staff lay-offs is insufficient to necessitate the Petitioner’s recusal. See, e.g., A.O. 2015-32 (Jamestown Planning Commission member who was a firefighter for the Town of Jamestown was not prohibited from participating in the Planning Commission’s review of plans to renovate and expand the fire station, where there was no indication that such renovation would financially impact the petitioner); A.O. 2011-26 (North Providence Town Council member whose children were a police officer and firefighter for the town must recuse from matters that impacted her sons’ terms of employment or benefits, but need not recuse from decision-making that impacted police and fire operations generally). In summary, it is our opinion that the Petitioner is prohibited by the Code of Ethics from participating in School Committee matters relating to the negotiation and approval of school department contracts with NEARI local bargaining units and must also recuse from participation in grievance hearings involving NEARI members. However, the Petitioner is not prohibited from participating in discussions and voting relative to decisions involving budgets, facilities, administration evaluation and contracts, personnel appointments and leave, and staff lay-offs, provided that NEARI is not a party or participant to the matter before the School Committee, and further provided that there is no reasonably foreseeable direct monetary gain or loss to NEARI. 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) 520-RICR-00-00-1.2.1 Related Advisory Opinions: A.O. 2015-32 A.O. 2011-47 A.O. 2011-26 A.O. 2009-1 A.O. 2008-56 A.O. 2006-48 A.O. 2002-74 Keywords: Union – Bargaining Units [1] “UniServ” is the standard title for NEARI’s field staff and refers to the National Education Association’s “Unified Service” model in which trained UniServ staff provide direct service to members of NEARI bargaining units relative to contract issues, evaluation appeals, legal matters and grievances, organizing, professional development, public advocacy and building organizational capacity. The NEARI website lists the Petitioner as one of seven individuals who are employed with this title. http://www.neari.org/About/Officers-Staff (last accessed December 20, 2018). [2] Our opinion that any financial impact on NEARI as a result of decision-making on these other matters is both speculative and indirect is bolstered by the United States Supreme Court’s recent decision in Janus v. AFSCME, Council 31, 585 U.S. ___, 138 S.Ct. 2448 (2018), holding that public sector unions may no longer charge “agency fees” to the public employees for whom they negotiate contracts if those employees decline to join the union. Because school department employees are now permitted to opt-out of union membership and fees, a School Committee decision that may increase or decrease the number of school employees would not automatically increase or decrease the number of fee-paying union members.