Advisory Opinion No. 2007-24 Advisory Opinion No. 2007-24 Re: Michael A. Traficante QUESTION PRESENTED The petitioner, Chairman of the Cranston School Committee, a municipal elected position, requests an advisory opinion as to whether he must continue to recuse from participating and voting on matters which come before the School Committee involving the New England Laborers’/Cranston Public Schools Construction Career Academy given his membership on its Board of Directors and his employment with the New England Laborers’ Union. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chairman of the Cranston School Committee, a municipal elected position, must continue to recuse from participating and voting on matters which come before the School Committee if it is reasonably foreseeable that his employer, the New England Laborers’Union, will be financially impacted by such matters. The petitioner was elected to the Cranston School Committee (“School Committee”) in November of 2005. In 2007, the petitioner was re-elected to the School Committee and currently serves as its Chairman. The petitioner states that in his private capacity he is employed as the Director of Governmental Affairs for the New England Laborers’ Union (“NEL”). The petitioner advises that in September of 2002, the Rhode Island Board of Regents for Elementary and Secondary Education (the “Board of Regents”) approved an application for a new charter school partnership between the NEL and the Cranston Public Schools (“CPS”) to form the NEL/CPS Construction Career Academy (“Construction Academy”). The petitioner informs that pursuant to state law, the Construction Academy is considered a public school, funded by the State and the local school district, and is governed by its own Board of Directors. The petitioner represents that the NEL does provide funding for four (4) instructors at the Construction Academy who teach labor related courses. The petitioner further represents that the NEL does contribute some materials to the Construction Academy. The petitioner informs that the Board of Directors for the Construction Academy is comprised of the following members: the Cranston School Superintendent of Schools or his/her designee; the Cranston School Committee Chairperson or his/her designee; a member of the Cranston Teachers’ Union; two members representing NEL; a Construction Academy parent representative; and, a resident from the City of Cranston. The petitioner advises that for approximately five (5) years he has served on the Construction Academy’s Board of Directors as one (1) of the two (2) NEL representatives. The petitioner informs that in 2004, he was elected Chairman of the Board of Directors for the Construction Academy. The petitioner represents that since being elected to the School Committee in 2005, he has recused or has abstained from voting when matters relating to the Construction Academy have come before the School Committee. Because of his position as Chairman of the Board of Directors for the Construction Academy and an employee of NEL, the petitioner seeks guidance from the Commission as to whether he must continue to recuse from participating and voting on any matters relating to the Construction Academy when such matters come before the School Committee. The petitioner further inquires as to whether the Code of Ethics would prohibit him from serving on the Board of Directors for the Construction Academy as a representative of the School Committee rather than as a representative of NEL. Under the Code of Ethics, the petitioner 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 and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. With regard to the petitioner’s first inquiry concerning his position as Chairman of the Board of Directors for the Construction Academy, the facts as represented by the petitioner do not lead the Commission to conclude that the petitioner is required to recuse from participating and voting on School Committee matters concerning the Construction Academy solely because of his position as Chairman of the Board of Directors. While the Code would prohibit the petitioner from making decisions as a member of the School Committee that would financially impact any business associate or any business by which he is employed or represents, the Construction Academy is not considered to be a "business" or "business associate" under the Code of Ethics because it is considered a public school. See A.O. 2003-31 (Code of Ethics does not consider relationship between public official and public body to be that of "business associates"); A.O. 97-17 (finding, inter alia, that the definition of "business" does not extend to public entities such as the Warren Town Council or the Bristol County Water Authority). Further, the Code would not prohibit the petitioner from serving on the Board of Directors as a representative of the School Committee, rather than as a representative of the NEL, since there does not appear to be a financial nexus from such representation. With regard to the petitioner’s inquiry concerning his employment by the NEL, he would be required to recuse if matters concerning the Construction Academy come before the School Committee and it is reasonably foreseeable that his employer, the NEL, would be financially impacted by such matters. However, in the absence of an actual issue or item to consider, the Commission is without sufficient, specific facts upon which to base an opinion. The petitioner is urged to seek further guidance from the Commission in the event that a specific matter appears before the School Committee involving the Construction Academy that has a potential to financially impact the petitioner’s employer. Finally, with regard to the petitioner’s inquiry as to whether the Code of Ethics would prohibit him from serving on the Board of Directors for the Construction Academy as a representative of the School Committee rather than as a representative of NEL, the Code would not prohibit the petitioner from serving on the Board as either a representative of the School Committee or the NEL. Again, however, the Code would require the petitioner to recuse if matters concerning the Construction Academy come before the School Committee and it is reasonably foreseeable that his employer, the NEL, would be financially impacted by such matters. Notice of recusal must be filed with the School Committee and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions : 2007-13 2003-31 Keywords : Private employment