Advisory Opinion No. 2003-11

Re: Ella M. Whaley

QUESTION PRESENTED

The petitioner, a member of the South Kingstown School Committee, a municipal elected official, requests an advisory opinion as to whether she may participate in school committee negotiations with Council 94, the labor organization representing 68 maintenance and custodial employees of the School Department, given that her brother is a custodian in the School Department.

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, may not participate in negotiations, voting or other matters affecting the labor contract with Council 94, the labor organization representing 68 maintenance and custodial employees of the School Department, given that her brother is a custodian in the School Department and would be affected by this contract. The petitioner's participation in the negotiations or votes on the contract would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d). Here, the class exception set forth in R.I. Gen. Laws § 36-14-7(b) does not apply since the negotiations affect a subset of employees in the School Department and would only affect approximately 68 people.

The Code of Ethics prohibits public officials from taking any official action that is likely to have a direct financial or monetary impact on, among others, a family member or from having an interest which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a). A substantial conflict of interest occurs if the public official has reason to believe or expect that a family member will derive a direct monetary gain or loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). However, an official will not have an interest 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). Additionally, an official 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 a member of her family. See R.I. Gen. Laws § 36-14-5(d). Finally, under R.I. Gen Laws §36-14-2(1), a brother is included as a member of the petitioner’s family.

The petitioner represents that the South Kingstown School Committee is currently in contract negotiations with Council 94 to extend the maintenance and custodial contract for one year. The petitioner informs that her brother is currently employed as a custodian for the South Kingstown School Department. The petitioner advises that the South Kingstown School Department currently employ 68 maintenance and custodial employees. She states that her brother will be affected by the contract negotiations, since he is a member of the maintenance and custodian’s union. The petitioner seeks this advisory opinion to determine what limitations are placed on her ability to participate in the negotiations, votes or other matters affecting the labor contract with the Council 94, given that her brother will be affected by the contract

The Commission has concluded that the class exception set forth in R.I. Gen. Laws § 36-14-7(b) does not apply in situations where the petitioner's family member, although an employee of the school system, is among a small group of employees or a subset of employees to be affected by the negotiations or any matter under consideration. See A.O. 97-65; A.O. 98-32; and A.O. 97-75. In Advisory Opinion 97-65, we advised a member of the Scituate School Committee, who requested guidance as to whether he could participate in voting or negotiations regarding labor contracts with three non-certified employee groups, that he could not participate in negotiations, voting or other matters affecting the labor contract with the teacher's aides since his wife was one of 45 teachers' aides in the School Department. In that opinion, we specifically concluded that "an employee group of 45 members in a single school system does not constitute such a significant and definable class of person so as to trigger the 7(b) exception." Similarly, in Advisory Opinion 98-32, the Commission concluded that a School Committee member should not participate in negotiations, voting or other matters affecting the labor contract with the labor organization representing 152 unclassified employees of the School Department, given that his wife and mother-in-law are unclassified employees and his mother-in-law is one of 45 unclassified employees that would be affected by a clause under negotiations regarding family Blue Cross benefits for retired employees. See also A.O. 97-75 (advising the Chief of Human Resources for the Department of Environmental Management that she could not participate in negotiations for a settlement agreement with a bargaining unit for employees of the Division of Parks & Recreation since her brother was one of the potential recipients of back pay, which was the focus of the ongoing settlement and since an employee group of approximately 85 members within a single division did not constitute such a significant and definable class of persons so as to trigger the 7(b) exception).

After considering the relevant provisions of the Code of Ethics and past advisory opinions, we conclude that the petitioner may not participate in negotiations or voting concerning the contract with Council 94, the labor organization representing 68 maintenance and custodial employees of the School Department, since her brother has a financial interest in the contract. Here, the negotiations concern a subset of the employees of the School Department, the maintenance and custodial personnel, which includes the petitioner's brother and, accordingly, is distinguishable from the past opinions where we have permitted participation under the § 7(b) exception. Therefore, since the negotiations concern a subset of employees of the School Department, the Code of Ethics, namely R.I. Gen. Laws §§ 36-14-5(a) and 5(d), would prohibit the petitioner from participating in the negotiation or voting concerning this contract. Notice of recusal should be filed with both the Ethics Commission and the South Kingstown School Committee in accordance with R.I. Gen. Laws § 36-14-6.

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

99-36

99-4

98-172

98-162

98-130

98-32

97-118

97-75

97-65

97-52

96-96

96-69

96-60

Keywords:

Class exception

Contracts

Family member: public employment

Negotiations

Unions/bargaining unit