Advisory Opinion No. 2004-16

Re: Stephen C. Waluk

QUESTION PRESENTED:

The petitioner, a Newport City Councilor, a municipal elected official, requests an advisory opinion as to whether he may participate in and/or vote on City Council matters involving the collective bargaining contracts of the Newport Police Department and the Newport Fire Department, given the fact that he has as an uncle employed within each department.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Newport City Councilor, a municipal elected position, may vote on City Council matters involving the collective bargaining contracts of the Newport Police Department and the Newport Fire Department, provided that his uncles are not affected individually by their respective contracts, except as a member of the entire class of Newport firefighters and police officers, respectively. The petitioner also may participate in contract negotiations to the extent that the Council offers collective input during such negotiations and provided that it is not reasonably foreseeable that any terms of the contract could affect either of his uncles individually. 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 a member of his family to any greater extent than any other similarly situated member of a significant and definable class.

The petitioner is an elected member of the Newport City Council. He represents that he has an uncle who is employed by the Newport Police Department as a patrolman and another uncle who is employed by the Newport Fire Department as a firefighter. According to the petitioner, while both uncles are union members, neither holds an office therein. The petitioner represents that he will not participate in any City Council matter that involves either of his uncles individually. The petitioner informs that the City currently employs approximately eighty-six (86) police officers and approximately ninety (90) firefighters. The petitioner states that he is not a member of the negotiating team regarding the details of collective bargaining contract matters. However, he does provide, along with other Council members, a collective input regarding contract matters during the negotiation process.

The Code of Ethics prohibits a public official 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 his 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 suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Under the exception set forth in R.I. Gen. Laws § 36-14-7(b), however, an official will not have an interest in substantial conflict with his public duties if any benefit accrues to the official or family member “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.”

In accordance with Section 7(b), the Commission has permitted certain public officials to participate in contract negotiations and voting as long as the official’s affected family member was part of a significant and definable class. In determining whether a proposed class is sufficiently “significant and definable,” the Commission considers the totality of the circumstances, including, but not limited to, (1) the description of the class or subclass; (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. See A.O. 2003-57 (employing a “totality of the circumstances” analysis to determine whether the proposed class of state employees and teachers constituted a “significant and definable” class).

Here, the petitioner asks the Commission to consider two proposed classes. The first consists of all police officers within the Newport Police Department numbering approximately eighty-six (86). The second consists of all firefighters within the Newport Fire Department numbering approximately ninety (90). The official action contemplated by the petitioner is the same in regard to both classes: to participate in and vote on City Council matters involving the collective bargaining contracts of each proposed class. In particular, the petitioner expects to provide, along with other Council members, a collective input regarding contract matters during the negotiation process and to vote, along with other Council members, on the final form of the contract. According to the petitioner, his official action will affect all class members equally, not a subset therein.

In an analogous opinion, A.O. 98-166, the Commission considered whether a West Warwick Town Councilor whose son was employed by the Police Department and whose daughter was employed by the Town could participate in and vote on matters relating to police and municipal employee contracts. The proposed class of police officers consisted of sixty-one (61) members. The proposed class of municipal employees consisted of 100 members. While both of the Councilor’s children were union members, neither held an office therein. The Commission concluded that the Councilor could participate in and vote on matters relating to police and municipal employee contracts as a member of the Town Council provided that his children were not affected individually by the respective contracts, except as a member of the entire class of municipal employees or police officers in that system. See also A.O. 98-162 (opining that a Westerly School Committee member whose spouse was employed in the school system could vote on matters relating to a teacher contract provided that the contract did not affect his wife individually or as part of a smaller subgroup of employees).

After considering the totality of the circumstances in the instant matter, the Commission concludes that the petitioner may vote on City Council matters involving the collective bargaining contracts of the Newport Police Department and the Newport Fire Department, provided that all members of each class are affected equally by the contracts. The petitioner also may participate in contract negotiations to the extent that the Council offers collective input during such negotiations and provided that it is not reasonably foreseeable that any terms of the contract could affect the petitioner’s uncles individually. If matters come before the petitioner that would affect either of his uncles specifically or as a member of a smaller subgroup, the petitioner must recuse in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

2003-57

2003-29

2003-14

98-166

98-162

97-65

Keywords:

Class Exception

Family: Financial Benefit

Nepotism

Union / Bargaining Unit