Advisory Opinion No. 2003-29

Re: Anthony J. Lupino

QUESTION PRESENTED

The petitioner, a Cranston School Committee member, a municipal elected position, requests an advisory opinion as to whether he may participate in negotiations with the Cranston Teachers’ Association (CTA-AFT) given that his spouse is a teacher and a member of the CTA.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Cranston School Committee member, a municipal elected position, may participate and/or vote on matters relating to teacher contracts as a member of the School Committee provided that his spouse, a teacher in the school system, is not affected individually by the contract, except as a member of the entire class of teachers in the system. This opinion is based on and limited by Section 7(b) of the Code which provides that the petitioner may participate in actions as a public official as long as they do not affect him or his family to any greater extent than any other similarly situated member of a significant and definable class. However, the petitioner is prohibited from participating in the negotiation process, since it is unclear at the onset of collective bargaining how the negotiations might impact his spouse.

The petitioner represents that due to the nature and severity of the budget situation in the City of Cranston, the School Committee is considering re-opening negotiations with the Cranston Teachers’ Association. The petitioner informs that his wife is a teacher in the school system and is a member of the CTA. Additionally, the Cranston School department informs that they currently employ 1007 teachers in the school system. The petitioner seeks this advisory opinion to determine whether he may participate in teachers’ contract negotiations when his spouse is a teacher in the school system.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). However, an official will not have an interest which is in substantial conflict with his public duties if any benefit accrues to the official or a member of his 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).

In analogous past advisory opinions, the Commission has opined that school committee members with family members in the school system could participate in negotiations and voting on the school employee contracts as long as the family members were part of a significant and definable class (for example, all of the teachers in a school system). The Commission generally applies the 7(b) class exception where the matter at issue concerns large groups, such as all members of a community, all hunters, all state pension recipients or all teachers within a school system. See A.O. 2002-27; A.O. 2002-12; and A.O. 2002-10. Conversely, the Commission has concluded that school committee members with family members in the school system may not participate in negotiations or voting on issues concerning a family member individually or concerning a family member's subset of teachers or employees (e.g., nurses or teachers aides), particularly where the subset was not large. See A.O. 98-32, A.O. 97-65 and A.O. 95-23. Here, a teachers’ contract that would affect all 1007 teachers in the Cranston School District and not a subset of teachers, clearly falls within that exception.

Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner may participate in negotiations and voting with regard to the teachers’ contract provided that all members of that class are affected by the contract equally. However, if matters come before the petitioner that would affect his spouse specifically or as a member of a subset of teachers, he must recuse in accordance with RI Gen. Laws §36-14-6. Additionally, the petitioner is prohibited from participating in the negotiation process, since it is unclear at the onset of collective bargaining how the negotiations might impact his spouse.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

2002-27

2002-12

2002-10

99-55

99-4

98-162

98-32

97-65

95-23

92-53

Keywords:

Class exception

Contracts

Family: public employment

Negotiations