Advisory Opinion No. 2005-61 Re: Paul Silva QUESTION PRESENTED: The petitioner, a member of the Bristol Warren Regional School Committee, a municipal elected official, requests an advisory opinion as to whether he may participate in the negotiations and vote on the labor contract between the Bristol Warren Regional School Committee and Council 94, given that his spouse is a part-time teacher’s assistant in the School Department and a member of Council 94. 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 votes by the Bristol Warren Regional School Committee to accept or reject the labor contract with Council 94 as a whole, provided that his spouse is not affected by the contract individually or to any greater extent than any other similarly situated members of Council 94. The Commission opines that the petitioner should recuse himself, in accordance with R.I. Gen. Laws § 36-14-6, from providing any input during 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 Bristol Warren Regional School Committee (“School Committee”) for approximately eleven years. He is currently serving as the School Committee’s Parliamentarian and Chairman of the Personnel/Contract Sub-Committee. The petitioner advises that the Personnel/Contract Sub-Committee reviews all Level III Grievances brought forward by either of the two unions. The petitioner informs that in September of 2005, his spouse was hired as a part-time teacher’s assistant and is currently a member of Council 94, one of the two unions in the district. The petitioner further advises that the current labor contract with Council 94 will expire in June of 2006, and negotiations for the new contract are to begin in the near future. In a subsequent telephone conversation with the petitioner, he advised that there are approximately 200-250 members of Council 94 in the school district. He informs that Council 94 represents clerks, custodians, teacher’s assistants and maintenance personnel. The petitioner advises that there are approximately forty full-time teacher’s assistants and approximately five or six part-time teacher’s assistants. Moreover, the petitioner represents that his spouse would be directly affected by any changes to the new contract since she is a member of Council 94. The petitioner seeks this advisory opinion to determine what limitations are placed on his ability to participate in the negotiations, votes or other matters affecting the labor contract with the Council 94, given that his spouse will be affected by this 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). 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 the petitioner may not participate in contract negotiations with Council 94. However, with regard to the petitioner’s participation in the School Committee’s vote on the overall labor contract once the negotiations have concluded, the Commission has applied section 7(b)’s “class exception” to similar situations. See, e.g., A.O. 2005-26 (concluding that a member of the Newport City Council may participate in votes by the Newport City Council to accept or reject the collective bargaining contracts as a whole between the City and the unions, provided that her father and her uncle are not affected by the contracts individually or to any greater extent than any other similarly situated member of their respective class); A.O. 2005-25 (finding that a member of the Newport School Committee may participate in votes by the School Committee to accept or reject the teachers’ contract as a whole, provided that his spouse is not affected by the contract individually or to any greater extent than any other similarly situated member of the class); 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 the class 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, for the purposes of voting on the overall contract, the proposed class consists of all of the members of the Council 94 bargaining unit, numbering approximately 200-250. The petitioner states that the provisions of the overall contract at issue will apply to his spouse to no greater extent than all of the other members in this class. Accordingly, given the petitioner’s representations, section 7(b)’s class exception applies. The Commission therefore opines that the petitioner may participate in the Bristol Warren Regional School Committee’s consideration of the labor contract to the extent that the School Committee votes to accept or reject the contract as a whole and provided that his spouse 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 Council 94 members within the Bristol Warren Regional 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 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 spouse individually or as a member of a smaller class. Finally, the petitioner has inquired whether or not the Code of Ethics would prohibit him from participating in any discussions or grievances brought before the School Committee regarding members of Council 94. The Commission opines that the petitioner is not prohibited from participating in discussions or grievances brought before the School Committee regarding members of Council 94 provided that the matters do not involve or have a direct impact on his spouse in any way. 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: 2005-26 2005-25 2004-16 98-166 98-162 Keywords: Class Exception Family: Public employment