Advisory Opinion No. 2005-21 Re: Stephanie P. Mazi, Ph.D. QUESTION PRESENTED: The petitioner, a member of the Johnston Town Council, a municipal elected position, requests an advisory opinion as to whether she may ratify the Town’s employment contract with the police union and whether she may participate in and vote on the Town’s overall budget, given that the petitioner’s spouse is a full-time employee of the Johnston Police Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Johnston Town Council, a municipal elected position, may ratify the police contract and participate in and vote on the Town’s budget notwithstanding that the petitioner’s spouse is employed by the Johnston Police Department. The petitioner informs that she was elected to the Johnston Town Council in November 2004. She represents that her husband is a full-time employee of the Johnston Police Department and is currently assigned to the detective division. She also represents that her husband is a member of the police union for the Town of Johnston and that he does not hold any leadership positions in the union. The petitioner informs that she is aware that she may not participate in any Town Council matters that specifically relate to her husband. She submits this request to determine whether the Code of Ethics allows her to participate in general matters before the Town Council that affect the Johnston Police Department, specifically the police contract and the Police Department budget. The first question presented by the petitioner is whether she may participate in the Johnston Town Council’s upcoming ratification of the Town’s police contract. She represents that, under the Johnston Town Charter, the Town Council must ratify all Town contracts and that the Town’s police contract will soon require the Town Council’s ratification. She informs that the Mayor of Johnston and the police union negotiate the terms of the police contract. She represents that this contract sets the base salaries for various positions in the Police Department and provides the guidelines for obtaining particular positions. She informs that the Town Council merely ratifies this previously agreed upon police contract and has no involvement whatsoever in its negotiation. The second question presented by the petitioner is whether she may participate in and vote on the Police Department’s budget when the Town Council votes on the overall Town budget. The petitioner informs that the Town Council votes on the budgets of all Town departments, including the Police Department. She represents that the Town Council will soon vote on the entire municipal budget, including the Police Department’s budget. She informs that the Police Department’s budget will include the previously mentioned police contract after it is ratified by the Town Council. The petitioner represents that the Town Council has the authority to alter the line items of the Police Department budget, however, she informs that the Town Council cannot change the police contract when considering the Police Department’s budget. The petitioner informs that she will recuse herself from the Town Council’s individual consideration of the Police Department budget and will only participate in the vote to accept or reject the overall Town budget, which will include the Police Department’s budget. Under the Code of Ethics, a public official 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). An official has an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, her family member, her business associate, her employer or any business by which she is employed or which she represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use her public office or confidential information received through her office to obtain financial gain, other than that provided by law, for herself, her family member, her business associate, her employer or any business she represents. R.I. Gen. Laws § 36-14-5(d). With regard to the petitioner’s ratification of the police contract, the Commission has applied section 7(b)’s “class exception” to similar situations. See , e.g., A.O. 98-166 (opining that a West Warwick Town Councilor whose daughter was employed by the Town and whose son was employed by the Police Department could participate in and vote on matters relating to the police and municipal employee contracts provided that the vote or negotiations did not affect his daughter or son individually); A.O. 98-162 (advising a Westerly School Committee member whose spouse was employed in the school system that he could vote on matters relating to teacher contracts provided that his spouse was not affected individually by the contract, except as a member of the entire class of teachers in the system). Under section 7(b), a substantial conflict of interest pursuant to section 5(a) does not exist if a public official receives a financial benefit or detriment “as a member of a business, profession, occupation or group . . . to no greater extent than any other similarly situated member of the business, profession, occupation or group[.]” R.I. Gen. Laws § 36-14-7(b). Here, the police contract applies to all members of the police union in Johnston and the petitioner represents that her husband will not be individually impacted by the contract. She also informs that she is not involved in the negotiation of this contract. Accordingly, given the petitioner’s representations, section 7(b)’s class exception applies and the petitioner’s participation in the ratification of the police contract will not violate the Code of Ethics. With regard to the petitioner’s participation in and vote on the Town’s overall budget, the Commission has allowed town council members with family members employed by the town to vote on the town’s overall budget even if by so doing the members are voting on matters indirectly impacting their family members. See, e.g., A.O. 2005-17 (Portsmouth Town Councilor, a municipal elected position, may vote on the Town’s budget notwithstanding that it includes the School Department’s budget and his spouse is an elementary school teacher in the Portsmouth School Department). In such circumstances, the Commission has reasoned that a vote on an overall Town budget is sufficiently remote from the line items so as not to constitute a substantial conflict of interest in violation of the Code of Ethics. Here, the petitioner informs that she will participate in the vote on the overall Town budget, which includes the Police Department’s budget, but that she will not participate in the Town Council’s individual consideration of the Police Department budget. Accordingly, based on the petitioner’s representations, she will not violate the Code of Ethics by merely participating in the vote to accept or reject the overall Town budget, which includes the Police Department’s budget. The Commission therefore opines that the petitioner may participate in the decision on whether to ratify the police contract and participate in and vote on the overall Town budget notwithstanding that her husband is a full-time employee of the Police Department. The Commission points out, however, that the petitioner should recuse herself from participating in and/or voting on matters regarding her spouse or the Police Department that will directly impact her spouse. The Commission notes that notice of recusal, if required, should be filed with the Ethics Commission and the Town Council 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) Regulation 36-14-7001 Related Advisory Opinions: 2005-17 2004-27 98-166 98-162 Keywords: Budgets Class Exception Family: Public employment