Advisory Opinion No. 2019-61 Rhode Island Ethics Commission Advisory Opinion No. 2019-61 Approved: October 29, 2019 Re: Julie Carroccia QUESTION PRESENTED: The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in discussions and decision-making related to litigation which challenges a state law affecting certified school teachers and municipal employees, given that her spouse is a public school teacher. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Charlestown Town Council, a municipal elected position, is not prohibited from participating in discussions and decision-making related to litigation which challenges a state law affecting certified school teachers and municipal employees, notwithstanding that her spouse is a public school teacher. The Petitioner is an elected member of the Charlestown Town Council (“Town Council”). She represents that Charlestown (“Town”) is one of approximately twenty municipalities in Rhode Island that have joined together to challenge a law passed in May of this year requiring that all contractual provisions contained in an otherwise expired collective bargaining agreement with certified school teachers and municipal employees shall continue until such time as a successor agreement has been reached between the parties, excluding contractual provisions that limit layoffs (“Contract Continuation Law”). The Petitioner further states that, on October 15, 2019, the Town Council engaged in discussions and decision-making regarding the hiring of, and payment of a retainer to, a law firm to represent the Town in litigation expected to be filed to challenge the Contract Continuation Law (“litigation”). The Petitioner represents that, given that her spouse is a public school teacher in West Warwick, she recused from participation on that date. She explains, however, that because she expects there will be additional discussions and decision-making at future Town Council meetings about the litigation including, but not limited to, legal strategies and the payment of additional legal fees, she is seeking guidance regarding whether she may participate in such matters going forward. A person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). 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 her public duties if she has reason to believe or expect that any person within her 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 her [] family” specifically includes “spouse.” Regulation 1.3.1(A)(2). Finally, a public official may not use her public office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics are implicated, the Commission must first ascertain whether the Petitioner’s spouse will be financially impacted by the official action that is under consideration. Here, the Petitioner’s spouse is one of more than 11,500 public school teachers, plus an additional 20,000 other municipal employees in Rhode Island, who could be impacted by the litigation if the challenge to the law is successful and the law is repealed. Therefore, any action taken by the Petitioner as a member of the Town Council could result in a financial impact to her spouse. However, given the large number of persons who would be similarly impacted if the challenge to the law is successful, we will consider the application of the “class exception” to this particular set of circumstances. Section 36-14-7(b) of the Code, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of her duties in the public interest and of her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to her or any person within her family or any business associate, or any business by which the person is employed or which the person represents, as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group. When determining whether any particular circumstance supports and justifies the application of the class exception, the Commission will consider the totality of the circumstances. Among the important factors considered are: 1) the description of the class; 2) the size of the class; 3) the function or official action being contemplated by the public official; and 4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. The Ethics Commission recently applied the class exception in a case involving the very legislation that was signed into law and which forms the basis of the instant advisory opinion. In Complaint No. 2019-7, In re Valarie Lawson, the Ethics Commission applied the class exception to determine that there was no direct financial impact upon a member of the Rhode Island Senate, who was also a public school teacher, engaged in the exercise of her official legislative duties, other than that which impacted more than 11,500 other public school teachers, plus an additional 20,000 other municipal employees in Rhode Island. See also A.O. 2017-26 and A.O. 2017-25 (opining that legislators who served in the Rhode Island House of Representatives, and who were both employed as firefighters in the City of Woonsocket, were not prohibited by the Code of Ethics from participating in discussions and voting on legislation involving firefighter collective bargaining agreements that had expired, because the legislation would impact all Rhode Island firefighters who collectively bargained, and the petitioners would not be impacted to any greater or lesser extent than all of the other similarly situation firefighters); A.O. 2005-22 (opining that an Exeter Town Councilor could participate and vote on a proposed tax freeze ordinance that would benefit property owners aged 65 and over, and all married couples when the older spouse reaches age 65, notwithstanding the fact that his spouse was 65 years old and the petitioner could benefit from the ordinance if passed, because the petitioner would be affected by the proposal to no greater or lesser extent than the significant and definable class of all persons aged 65 or over or those persons who were married to persons aged 65 or over and who owned property within the town.) Here, participating in discussions and decision-making related to litigation which challenges the law has the potential to result in the repeal of the law. However, a decision that the law is invalid would affect all public school teachers and municipal employees in the same way, and affect the Petitioner’s spouse to no greater or lesser extent than any other of the similarly situated public employees in Rhode Island. Accordingly, and based upon our application of the class exception, the Petitioner is not prohibited from participating in discussions and decision-making in matters involving litigation which challenges a state law affecting certified school teachers and municipal employees, notwithstanding that her spouse is a public school teacher. 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) § 36-14-7(b) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Other Citations: In re Valarie Lawson, Complaint No. 2019-7 Related Advisory Opinions: A.O. 2017-26 A.O. 2017-25 A.O. 2005-22 Keywords: Class Exception