Advisory Opinion No. 2007-32 Advisory Opinion No. 2007-32 Re: Janice D. Mele QUESTION PRESENTED The petitioner, a member of the Town of Johnston School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics permits her participation in contract negotiations between the School Committee and the teachers’ union, and in the School Committee’s decision-making to approve or reject that contract, given that the petitioner has family members who are employed by the School District and are members of the teachers’ union. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Johnston School Committee, is prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the teachers’ union, given that the petitioner has family members who are members of the union. The petitioner may, however, participate in the School Committee’s decision to accept or reject a contract already negotiated by the School Committee and teachers’ union. The petitioner is a member of the Town of Johnston School Committee. She represents that two of her first cousins are employees of the School District and are also members of the Johnston Federation of Teachers, Local 1702 (“the teachers’ union”), the collective bargaining agent for Johnston teachers. Given these representations, the petitioner seeks clarification as to whether she is permitted to participate in the School Committee’s contract negotiations and its decision to approve or reject the negotiated contract. Commission Regulation 36-14-5004 specifically addresses the question raised by the petitioner. It reads, in pertinent part: (b)(4) Participation in Collective Bargaining/Employee Contracts. (A) Negotiations. No person subject to the Code of Ethics shall participate in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his or her family or a household member. (B) Vote on Entire Contract. Notwithstanding the prohibition set forth in subsection 4(A), a person subject to the Code of Ethics may participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his or her family or household member is impacted by the contract or agreement as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. Commission Regulation 36-14-5004(a)(4). Regulation 36-14-5004’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the impact of decisions as to individual components of a contract can be difficult to predict. For that reason, an official’s participation in a contract issue that is seemingly unrelated to a family member can have a resulting impact on other areas of the contract that would directly affect the family member. Accordingly, the petitioner is prohibited from participating in any School Committee contract negotiations with the teachers’ union given that members of her family are union members that will be impacted by the contract. However, pursuant to subsection (b)(4)(B) the petitioner is permitted to participate in the School Committee’s discussion and decision-making relative to approving or rejecting the entire contract as a whole, once negotiated by others. The basis for allowing such participation is an assumption that that a vote on an the entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as not to constitute a substantial conflict of interest in violation of the Code. See A.O. 2005-61 (Member of Bristol-Warren Regional School Committee must recuse from contract negotiations with teachers’ union given that his spouse is employed by school department and is a member of the union, but he may participate in School Committee’s decision to accept or reject the labor contract as a whole); A.O. 2005-26 (Newport City Council member may not participate in negotiations with municipal employees’ union given that her uncle is employed by the City and is a member of the union, but she may participate in Council’s decision to accept or reject collective bargaining agreement as a whole). Although the petitioner is permitted to participate in the overall vote to approve or reject the contract, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. The petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact her family members. In such circumstances, the petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission. Code Citations : Regulation 5004 36-14-5(a) 36-14-6 36-14-7(a) Related Advisory Opinions : 2005-61 2005-26 2005-25 2004-16 98-166 98-162 Keywords : Nepotism Family: Public employment