Advisory Opinion No. 2005-25 Advisory Opinion No. 2005-25 Re: Robert Leary QUESTION PRESENTED: The petitioner, a member of the Newport School Committee, a municipal elected position, requests an advisory opinion as to whether he may participate in the negotiation and vote on the teachers’ contract between the Newport School Committee and the Teachers Association of Newport, given that his wife is a teacher employed by the Newport School Department. It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Newport School Committee, a municipal elected position, may participate in votes by the Newport School Committee to accept or reject the teachers’ contract as a whole, provided that his wife is not affected by the contract individually or to any greater extent than any other similarly situated member of the class of all of the teachers within the Newport School Department. The Commission also opines that the petitioner should recuse himself, in accordance with R.I. Gen. Laws § 36-14-6, from any other actions taken by the Newport School Committee regarding the negotiation and vote on this contract, including the provision of any input on the negotiation of this contract and votes on the individual components of this contract. The petitioner informs that he has been a member of the Newport School Committee since January 2001. He represents that the current contract between the City of Newport and the Teachers Association of Newport will expire in August 2005. He informs that the Newport School Committee will soon negotiate and vote to approve a new contract with the Teachers Association of Newport, which is the teachers union of Newport. He represents that the Newport School Committee has already had discussions about this contract with its lawyer and that the members of the Newport School Committee have shared their suggestions for the contract with their lawyer. The petitioner represents that he has not participated in such discussions and that he will continue not to do so until he receives formal advice from the Ethics Commission. Additionally, the petitioner informs that his wife is a reading teacher employed by the Newport School Department for the past ten years. He informs that his wife is not an officer in the Teachers Association of Newport and that she is not involved in the negotiation of the teachers’ contract. The petitioner represents that his wife will be impacted by the teachers’ contract to the same extent as other members of the union and that nothing in the contract individually benefits her. He informs that there are approximately two hundred sixty (260) teachers in the Teachers Association of Newport and that all teachers employed by the Newport School Department are members of this union. 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). With regard to the petitioner’s participation in the School Committee’s negotiation and vote on the teachers’ contract, the Commission has applied section 7(b)’s “class exception” to similar situations. See, e.g., A.O. 2004-16 (opining that a Newport City Councilor may participate in and vote on City Council matters involving the collective bargaining contracts of the Newport Police Department and the Newport Fire Department because his uncles, employed by these departments, will be affected by the contracts to the same extent as the other firefighters and police officers); 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 this exception, 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 petitioner represents that the proposed class consists of all of the teachers within the Newport School Department, numbering approximately 260, and that the provisions of the contract at issue will apply to his wife to no greater extent than all of the other teachers in this class. Accordingly, given the petitioner’s representations, section 7(b)’s class exception applies. Nonetheless, the Commission deems it appropriate for public officials to limit their involvement in matters regarding the negotiation of contracts that may impact their family members. The Commission understands that the progression and impact of contract negotiations can be unpredictable and that an official’s participation in such matters can unexpectedly lead to a violation of the Code of Ethics. Accordingly, the Commission concludes that public officials in such situations should simply restrict their involvement in such matters at the outset. The Commission therefore opines that the petitioner may participate in the Newport School Committee’s consideration of the teachers’ contract to the extent that the Newport School Committee votes to accept or reject the contract as a whole and provided that his wife is not affected by this contract individually or to any greater extent than any other similarly situated member of the class of all of the teachers within the Newport School Department. The Commission encourages the petitioner to exercise caution when participating in these matters and to recuse himself, in accordance with R.I. Gen. Laws § 36-14-6, if any other matters come before the Newport School Committee regarding the negotiation and vote on this contract (including the provision of any input on the negotiation of this contract and votes on the individual components of this contract), and if this contract impacts his wife individually or as a member of a smaller class. 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 : 2004-16 98-166 98-162 Keywords : Class Exception Family: Public employment