Advisory Opinion No. 2008-44 Rhode Island Ethics Commission Advisory Opinion No. 2008-44 Re: Terri Serra QUESTION PRESENTED: The petitioner, a CHARIHO Regional School Committee member (“School Committee”), a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her participation in contract negotiations between the School Committee and the CHARIHO teachers’ union, given that her husband’s first cousin is a member of the union. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the CHARIHO Regional School Committee (“School Committee”), a municipal elected position, may not participate in contract negotiations between the School Committee and the CHARIHO teachers’ union, given that her husband’s first cousin is a member of the union. Commission Regulation 36-14-5004, entitled “Nepotism,” specifically prohibits persons subject to the Code of Ethics from participating in contract or collective bargaining negotiations which address or affect the employment, compensation or benefits of “any person within his or her family.” Regulation 5004(b)(4)(A). The phrase “any person within his or her family” is defined in Regulation 5004 as follows: “Any person within his or her family” means, in addition to any other definition, any person who is related to any public official or public employee, whether by blood, marriage or adoption, as any of the following: spouse, father, step-father, father-in-law, mother, step-mother, mother-in-law, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, grandfather, step-grandfather, grandfather-in-law, grandmother, step-grandmother, grandmother-in-law, grandson, step-grandson, grandson-in-law, granddaughter, step-granddaughter, granddaughter-in-law, uncle, step-uncle, uncle-in-law, aunt, step-aunt, aunt-in-law, niece, step-niece, niece-in-law, nephew, step-nephew, nephew-in-law, first cousin, step-first cousin and first-cousin-in-law. Regulation 5004(a)(1). Included among the enumerated familial relations listed is “first-cousin-in-law.” This Commission has had prior occasion, in Advisory Opinion 2007-49, to interpret the term “first-cousin-in-law” as it applies to this petitioner’s request, as “either the first cousin of one’s spouse, or the spouse of one’s own first cousin.” Id. This petitioner describes the person who is a member of the CHARIHO teachers’ union as her “husband’s first cousin;” as such, that individual is her “first-cousin-in-law” and thus is a person within the petitioner’s family for purposes of the prohibitions enumerated in Regulation 5004. 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. Id. Commission Regulation 36-14-5004’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the full 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. The petitioner represents that the contract at issue here is not for the impending 2008-2009 school year, but rather is for the period commencing with the 2009-2010 school year. She notes that the contract for the 2008-2009 school year was previously settled and that the teacher in question has in fact given notice of her resignation effective June, 2009. However, the teacher is currently one of approximately 350 members of the CHARIHO teachers’ union. Additionally, the petitioner concedes that it is possible that the upcoming negotiations could impact her husband’s first cousin’s retirement benefits. Accordingly, the petitioner is prohibited from participating in any School Committee contract negotiations with the CHARIHO teachers’ union, given that it is reasonably foreseeable that a member of her family, a union member, will be impacted by these contracts. 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 contract in its entirety, once negotiated by others. The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as to not constitute a substantial conflict of interest in violation of the Code. See A.O. 2007-31 (opining that a member of the Johnston School Committee must recuse from contract negotiations with the teachers’ union, given that her child was a teacher and a member of the union, but could participate in the School Committee’s decision to accept or reject the labor contract as a whole); A.O. 2007-32 (opining that a member of the Johnston School Committee must recuse from contract negotiations with the teachers’ union given that her two first-cousins were employees and members of the union, but could participate in the School Committee’s decision to accept or reject the labor contract 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 in identifying such instances where general conversation begins to focus on individual aspects of the contracts that are likely to financially impact her family member. In such circumstances, the petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission. Code Citations: Regulation 5004 Related Advisory Opinions: A.O. 2007-49 A.O. 2007-31 A.O. 2007-32 Keywords: Nepotism Family: Public Employment