Advisory Opinion No. 2006-12 Advisory Opinion No. 2006-12 Re: Diane S. Nobles, Ph.D. QUESTION PRESENTED The petitioner, a member of the Narragansett School Committee, a municipal elected position, requests an advisory opinion as to whether she may participate in the discussions and votes regarding whether to privatize the transportation services provided by the Transportation Department of the Narragansett School System, given that her brother works for the Narragansett School Systems Transportation Department. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Narragansett School Committee, a municipal elected position, may not participate in the discussions and votes regarding whether to privatize the transportation services provided by the Transportation Department of the Narragansett School System, given that her brother works for the Narragansett School System’s Transportation Department. The petitioner represents that she is serving her first term on the Narragansett School Committee. She asks whether she can participate in upcoming discussions and votes regarding whether to privatize the services provided by the Transportation Department. She informs that this issue will be on several upcoming School Committee agendas. The petitioner represents that she and her brother reside in a home they jointly own. She also represents that her brother works for the Narragansett School System’s Transportation Department as a bus monitor. She informs that the School Committee will be considering whether to privatize the services provided by the Transportation Department. She represents that there are approximately 36 employees in the Transportation Department, and that 11 are bus monitors. She also informs that the other staff includes 18 drivers, 4 bus assistants, 1 mechanic, 1 dispatcher/driver, and 1 Transportation Supervisor. 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. Additionally, a person subject to the Code of Ethics is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Under the Code of Ethics, the petitioner’s brother constitutes a person within the petitioner’s family and a business associate, given that her brother co-owns their home. See R.I. Gen. Laws §§ 36-14-2(1) and (3). Here, it is clear that the petitioner’s brother will be financially impacted by the privatization of services provided by the Transportation Department. The petitioner’s brother may lose his job as a bus monitor as a result of the privatization of the services provided by the Transportation Department. Accordingly, the prohibitions contained in section 5(a) apply and a conflict of interest exists. Section 7(b) of the Code of Ethics provides an exception to such a conflict, providing that an official will not have an interest in substantial conflict with her public duties if any benefit accrues to her, her family, her business associate, or any business by which she is employed or represents “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, or the significant and definable class of persons within the business, profession, occupation or group.” R.I. Gen. Laws § 36-14-7(b). The proposed privatization at issue does not impact all of the employees of the Narragansett School System. Rather, it regards only a sub-class of employees employed by the Narragansett School System’s Transportation Department. Accordingly, the Commission must consider whether this group is sufficiently “significant and definable” so as to justify an exception to what is otherwise a clear prohibition. In determining whether a sub-class is sufficiently “significant and definable” to warrant this exception, the Commission considers the totality of the circumstances. In past advisory opinions, this has included the following: (1) the description of the class, (2) the size of the class, (3) the function or official action being contemplated by the public official, and (4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. See, e.g., A.O. 2005-13 (opining that section 7(b) applies because the group of Jamestown residents living in the overlay district were sufficiently significant and definable, and the petitioner would be impacted by the amendments to no greater extent than these other such residents). The petitioner informs that the official action contemplated by the Narragansett School Committee includes determining whether, and to what extent, to privatize the services of the Narragansett School System’s Transportation Department. The petitioner informs that privatization would only affect the 36 employees of the Transportation Department. After considering the totality of the circumstances and the petitioner’s representations, the Commission opines that section 7(b)’s exception does not apply here because the employees of the Transportation Department are not a sufficiently significant and definable. See, e.g., A.O. 96-66 (opining that a Charlestown Town Councilor may not participate in and vote on proposed amendments to the Town Inventory Tax Code given that he owns a business in the Town and the estimated 100 businesses in Charlestown affected by the amendments are not “significant and definable”). Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner may not participate in the discussions and votes of the Narragansett School Committee regarding whether to privatize the transportation services provided by the Transportation Department of the Narragansett School System. The petitioner must recuse from such matters in accordance with R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-2(1) 36-14-2(3) 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 : 2005-13 96-66 Keywords : Class Exception