Advisory Opinion No. 2002-66

Re: Nancy E. Sprenglemeyer

QUESTION PRESENTED

The petitioner, a Coventry School Committee member, a municipal appointed position, requests an advisory opinion regarding her ability to participate and vote in the School Committee’s consideration of its collective bargaining agreement with the Coventry Teachers’ Alliance, given that she is a retired Coventry school teacher who would be affected by retiree healthcare provisions.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Coventry School Committee member, a municipal appointed position, may not participate in the School Committee’s consideration of matters relating to retiree benefits in its negotiation and approval of its collective bargaining agreement with the Coventry Teachers’ Alliance, given that she is a retired Coventry school teacher who would be affected by retiree healthcare provisions. The Commission specifically declines to apply the class exception of R.I. Gen. Laws § 36-14-7(b) where the petitioner and her spouse would be impacted to a greater or lesser extent than all other retired Coventry teachers and their spouses. However, the petitioner may participate in the School Committee’s vote on the proposed bargaining agreement as a whole.

The petitioner represents that she retired from her employment as a Coventry public school teacher in June 1999. She advises that the Coventry School Committee and the Coventry Teachers’ Alliance have reached a tentative collective bargaining agreement for the period covering the 2002-2003 school year through and including the 2005-2006 school year. She indicates that the current agreement, as well as the one subject to the School Committee’s vote at the end of October, includes provisions addressing healthcare coverage for retirees and their spouses. Under the existing agreement, upon reaching age 65 retirees and their spouses will receive either a contribution in the amount of $600.00 toward the Plan 65 premium or, if ineligible for Medicare, a $600.00 contribution for medical coverage for the lifetime of the retiree and/or spouse.

The petitioner further advises that the proposed agreement contains identical provisions, but increases the amount of contribution or payment from $600.00 to $1,000.00 for those teachers who retired during or after the 1990-1991 school year. Upon attaining age 65, both she and her spouse would directly benefit from this provision, in eight and twelve years, respectively. The petitioner indicates that the School Department has informed her that there currently are 181 retired teachers who would benefit from the provision upon reaching age 65. She states that the School Department presently is unable to determine the number of spouses eligible under this provision.

The Code of Ethics provides that the petitioner may not participate in any matter in which she, her family, or a business associate has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with her official duties if she has a reason to believe or expect 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. See R.I. Gen. Laws § 36-14-7(a). Also, pursuant to R.I. Gen. Laws § 36-14-5(d), the petitioner is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, her family, a business associate, or any business by which she is employed or represents.

However, an official will not have an interest which is in substantial conflict with her public duties if any benefit accrues to the official or a member of her family, "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 the significant and definable class of persons within the business, profession, occupation or group." R.I. Gen. Laws § 36-14-7(b).

At various junctures over the years, the Commission has discussed whether the class exception should apply to school committee/family member issues. Additionally, whether there should be more restrictions for negotiating contracts, since one does not know at the outset whether or to what extent all the persons subject to the contract will be treated the same, has been in issue in this and in other contexts. During the negotiation period, the "significant and definable class" which triggers the R.I. Gen. Laws § 36-14-7(b) exception may not be evident due to the shifting definitions of groups which may or may not be impacted by proposed contract benefits or provisions. Further, an official’s participation in the discussions of such benefits or provisions places her in a position in which she may participate in defining the groups to be impacted by the proposed provisions legislation and determine the extent of this impact. See also A.O. 95-75; 95-70; 95-69; 95-64; 95-63; 95-56, 95-55, 95-54 (various opinions issued to legislators finding that they could not participate in negotiations related to pension benefits for state workers and teachers since they had an interest and because the class exception could not be applied because of the tentative nature of which groups would be significant and definable during the negotiations).

Under 7(b), the petitioner would be able to participate in contract negotiations impacting her as a retired teacher provided she is a member of a significant and definable class (e.g., all retired teachers with the district) and affected to no greater or lesser extent than all other members of that class. However, she may not participate in contract negotiations and/or approval when a matter concerning her subset of retirees (e.g., all retired teachers who retired during or after the 1990-1991 school year) comes before her as a member of the School Committee.

In an analogous context, the Commission previously concluded, inter alia, that the Deputy House Minority Leader, a retired teacher, could vote on legislation related to pension benefits to state workers and teachers in its final form, provided that the particular legislative provisions benefited her to no greater extent than any other member of a significant and definable class. See A.O. 95-70. It found that she clearly could vote on legislation concerning pension benefits to state workers and teachers affecting all pensioners and prospective pensioners in a like manner, given the enormous size of that class of persons. If, however, the legislation treated different classes and/or categories of pensioners and proposed pensioners differently, the Commission advised that the class exception would be inapplicable. Id. See also A.O. 95-63; A.O. 95-55

Based on the provisions of the Code of Ethics and consistent with prior advisory opinions, the Commission concludes that the class exception does not apply to the instant facts. While all retired Coventry teachers would constitute a significant and definable class, the bargaining agreement at issue does not impact all members of that class equally. By its terms, teachers who retired prior to the 1990-1991 school year would receive a $600.00 contribution or payment, whereas those who retired during or after that period, including the petitioner, would receive a significantly higher amount.

Accordingly, the petitioner is prohibited from participating in the Coventry School Committee’s consideration of retiree benefits in its negotiation and approval of the collective bargaining agreement with the Coventry Teachers’ Alliance. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. However, consistent with prior advisory opinions, the petitioner may participate in the School Committee’s vote on the proposed bargaining agreement as a whole.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

2002-60

99-54

95-75

95-70

95-69

95-64

95-63

95-56

95-55

95-54

Keywords:

Class exception

Contracts

Family: financial benefit

Union/bargaining unit