Advisory Opinion No. 2005-24 Re: Thomas E. Skuba QUESTION PRESENTED: The petitioner, a member of the Bristol Warren Regional School Committee, a municipal elected position, requests an advisory opinion as to whether he may participate in the Bristol Warren Regional School Committee’s negotiation and vote on the contract with the teachers’ union, given that his father is a retired teacher from the District of Bristol Warren. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Bristol Warren Regional School Committee, a municipal elected position, may participate in the negotiation and vote on the contract with the teacher’s union, notwithstanding that his father is a retired teacher from the District of Bristol Warren. The petitioner informs that he is a member of the Bristol Warren Regional School Committee. He represents that he was elected to this Committee last fall for a four year term and that he was previously elected to the School Committee in 1996. He represents that a subcommittee of the School Committee negotiates the teachers’ contract with the teachers’ union and that he is not a member of this subcommittee. He informs that the contract negotiations have already begun between this subcommittee and the teachers’ union. The petitioner also represents that this subcommittee may seek general, collective input from the School Committee during the negotiation process. The petitioner states that he has not provided such input. The petitioner represents that his father retired from teaching in the District of Bristol Warren five years ago. He informs that his father, as a retired teacher, receives health insurance from the District of Bristol Warren in accordance with the contract language in place at the time he retired. The petitioner states that these previously contracted benefits cannot be changed. The petitioner also informs that his father is a member of the teachers’ union and that all teachers in the District of Bristol Warren are members of the teachers’ union. He represents that his father does not hold any positions in the union and that he is not involved in negotiating this contract. The petitioner represents that there are about five hundred (500) current teachers in the District of Bristol Warren and over one thousand (1,000) retired teachers in the District of Bristol Warren. Under the Code of Ethics, a public official 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 in the public interest. R.I. Gen. Laws § 36-14-5(a). An official has an interest in substantial conflict with his 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, his family member, his business associate, his employer or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). Based on the petitioner’s representation that the teachers’ contract under negotiation will not impact his father’s benefits, it appears that a substantial conflict of interest does not exist. Accordingly, the petitioner’s participation in the Bristol Warren Regional School Committee’s negotiation and vote on the contract with the teachers’ union would not be in violation of the Code of Ethics. The petitioner further informs that even if changes are made to teachers’ contract that could impact retired teachers, including his father, that his father would be affected by these changes to no greater extent than any other retired teacher in the District of Bristol Warren. In similar circumstances, the Commission has applied the “class exception” set forth under section 36-14-7(b) of the Code of Ethics. See, e.g., A.O. 98-40 (member of the State House of Representatives and spouse of a dentist may participate and vote on legislation relating to the practice of dentistry, since legislation at issue affects all dentists within Rhode Island to same extent). Under this exception, an official will not have an interest in substantial conflict with his public duties pursuant to section 36-14-5(a) 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). The application of this exception requires the Commission to make a fact specific, matter by matter determination. Consequently, the Commission advises the petitioner to seek further guidance from the Ethics Commission, providing relevant details, if it comes to light that retired teachers from the District of Bristol Warren will be impacted by a particular matter regarding the Bristol Warren Regional School Committee’s negotiation and vote on the contract with the teachers’ union. See, e.g., A.O. 2003-9 (recommending that the petitioner seek further guidance if budget issues arise that impact his wife, given that the application of the class exception requires a fact specific, matter by matter determination). Based on the petitioner’s representations, the Commission therefore opines that the petitioner may participate in the negotiation and vote on these contracts notwithstanding that his father is a retired teacher from the District of Bristol Warren. If matters come before the School Committee in the negotiation process that would affect the petitioner’s father specifically or as a retired teacher, the petitioner is advised to recuse himself from such matters in accordance with R.I. Gen. Laws § 36-14-6, or to seek further guidance from the Ethics Commission. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-7(b) Regulation 36-14-7001 Related Advisory Opinions: 2002-27 2003-9 98-40 Keywords: Class Exception