Advisory Opinion No. 2005-28 Re: The Honorable David S. Iwuc QUESTION PRESENTED: The petitioner, Mayor of the Town of Cumberland, a municipal elected position, requests an advisory opinion regarding whether he may participate in contract negotiations between the Town of Cumberland and the Fraternal Order of Police, given that as a retired member of the Town's police department he will be financially impacted by changes to the retirement sections of the police contract. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, Mayor of the Town of Cumberland, a municipal elected position, may not participate in contract negotiations between the Town of Cumberland and the Fraternal Order of Police ("FOP"), given that as a retired member of the Town's police department he will be financially impacted by changes to the retirement sections of the police contract. The petitioner is the Mayor of the Town of Cumberland. He represents that pursuant to the Cumberland Town Charter, one of his duties is to "[n]egotiate contracts in behalf of the Town subject to the approval of the Town Council, except as otherwise provided for by this Charter or State law." Among these Town contracts, according to the petitioner, is the Town's contract with the Cumberland Police Department. The petitioner states that this contract expires on June 30, 2005, and negotiations on the new contract are imminent. The petitioner represents that he is retired from the Cumberland Police Department and its bargaining unit, FOP Lodge #14. He states that it is likely that the upcoming contract negotiations between the Town and the FOP will involve proposed changes to the retirement sections of the contract that would financially impact the petitioner's retirement benefits. Given these representations, the petitioner asks whether the Code of Ethics permits his participation in these contract negotiations. If the Commission finds that a conflict of interest exists, the petitioner proposes to recuse from those portions of the contract that may impact him financially and to appoint someone else to negotiate such provisions. In the event that the Commission finds that the petitioner is required to recuse from all aspects of the contract negotiations, he asks whether he may appoint a disinterested person to negotiate the entire contract. 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). In his correspondence and in conversations with Commission staff, the petitioner has clearly represented that he stands to be financially impacted by changes to the retirement sections of the Police Department contract. For this reason, the aforementioned provisions of the Code of Ethics require his recusal from participation in contract negotiations impacting these sections. Furthermore, the petitioner has stated that all areas of the contract are interrelated for negotiation purposes, and that changes in any particular section of a contract may influence the negotiation of otherwise unrelated sections. Accordingly, the petitioner's proposal to recuse from only the retirement sections of the contract would not be effective in eliminating the conflict of interest. The petitioner must, therefore, recuse from participating in any of the ongoing negotiations. Notice of recusal should be filed with the Commission pursuant to R.I. Gen. Laws § 36-14-6. Given this result, the petitioner asks whether upon his recusal he may appoint a "disinterested person" to negotiate the contract in his place. If permitted, the petitioner asks that he be allowed to make recommendations to this disinterested negotiator. The Commission also must reject this proposal. The Commission has previously advised that when a public official recuses due to a conflict of interest, that recusal should result in the decision making going up, rather than down, the chain of command. See A.O. 2000-5. Ordinarily when a public official recuses, his subordinates are also disqualified from participating in decision-making since they might feel pressured to make decisions that the public official would have wanted had he been able to act but for his conflict of interest. Therefore, upon the petitioner's recusal, the Town must designate a person or entity not subordinate to the petitioner or subject to his jurisdiction and control to negotiate the police contract. We encourage the Town to consult with the Commission staff or to seek further advice from the Commission through the advisory opinion process as needed. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2004-16 2000-5 98-166 98-162 Keywords: Financial Interest