Advisory Opinion No. 2009-11 Rhode Island Ethics Commission Advisory Opinion No. 2009-11 Re: Valerie Zuercher QUESTION PRESENTED The Petitioner, a member of the Exeter-West Greenwich School Committee (“School Committee”), a municipal elected position, who is also a social worker in the South Kingstown school district and a member of the South Kingstown teachers’ bargaining unit of the Rhode Island chapter of the National Education Association (“NEARI”), requests an advisory opinion as to whether she is prohibited by the Code of Ethics from participating in Exeter-West Greenwich School Committee matters in which the NEARI representative of the Exeter-West Greenwich teachers’ bargaining unit is a participant. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter-West Greenwich School Committee (“School Committee”), a municipal elected position, who is also a social worker in the South Kingstown school district and a member of the South Kingstown teachers’ bargaining unit of NEARI, is not prohibited by the Code of Ethics from participating in Exeter-West Greenwich School Committee matters in which the NEARI representative of the Exeter-West Greenwich teachers’ bargaining unit is a participant. The Petitioner is a member of the Exeter-West Greenwich School Committee. She further represents that she is a social worker in the South Kingstown school system and as such, is a member of the South Kingstown teachers’ local bargaining unit of NEARI. The Petitioner states that the NEARI representative assigned to the South Kingstown teachers’ bargaining unit is John Leidecker; additionally, the Petitioner states that John Leidecker is also the NEARI representative for the Exeter-West Greenwich teachers’ bargaining unit. The Petitioner asks if given this set of circumstances, under the Code of Ethics, she must recuse from discussion and voting on School Committee matters in which John Leidecker is a participant. Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The Petitioner will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(f) further provides that no business associate of any person subject to the Code of Ethics shall represent him or herself or any other person before the municipal agency of which the person is a member, unless the agency is advised of the nature of the business relationship, and the person subject to the Code recuses from voting on, or otherwise participating in, the matter. R.I. Gen. Laws § 36-14-2(3) defines a business associate as “a person joined together with another person to achieve a common financial objective.” The Commission previously has advised that public officials who are union members may participate in negotiations and disciplinary matters in their public capacity with that union, provided that it is a different local. See A.O. 2004-2 (concluding that a member of the Tiogue Fire District Council may negotiate and enforce a collective bargaining agreement with members of the International Association of Firefighters (IAFF) Local 3514, and participate in personnel issues and discipline hearings regarding union district personnel, notwithstanding his membership in a different IAFF Local, given that he is merely a member of the IAFF and not a business associate of that organization); A.O. 2003-74 (opining that a member of the Tiogue Fire District Board could participate in negotiations with the IAFF Local 3514 as a member of the Board notwithstanding his membership in IAFF Local 1104 by reason of his employment with the West Warwick Fire Department, given that he is merely a member of the IAFF and not a business associate of that organization); A.O. 2003-18 (South Kingstown School Committee member may participate in negotiations with the NEA South Kingstown teachers’ union and NEA Educational Support Personnel union when she was a member of the University of Rhode Island Professional Staff Association (PSA), which is represented by the National Education Association (NEA), given that she is merely a member of the NEA and negotiations would be with a different local of the same umbrella organization); A.O. 2001-39 (finding that a South Kingstown School Committee member may participate in negotiations with the NEA/ESP when she was a member of the NEA/ACT since she was merely a member of the NEA and negotiations would be with a different local of the same umbrella organization.); A.O. 99-36 (concluding that a North Providence School Committee member may participate in negotiations since he is a member of the NEA in another district); and A.O. 96-92 (finding that a member of Rhode Island Laborers' Local 1215 who served as the Chairperson of the Westerly Housing Authority Board of Commissions could participate in the consideration of a contract with Rhode Island Laborers' Local 1217, notwithstanding the fact that he was a member of a different local of the same union since he was not a business associate of Local 1217). The question presented by this Petitioner is nearly identical to that addressed in Advisory Opinion 2008-15, in which a Petitioner raised the question of whether or not the identity of the union representative assigned to the local bargaining units in question changed the Commission’s analysis. In that advisory opinion, a member of the Jamestown School Committee, who was also a teacher in Little Compton and a member of that NEARI local teachers’ bargaining unit, asked whether the Code of Ethics prohibited him from participating in actions before the Jamestown School Committee involving a NEARI representative, who was also the representative of the NEARI local unit of which he was a member. Id. In that opinion, the Commission found that the Petitioner was not prohibited from participating in School Committee matters involving the common NEARI representative, provided that that representative was not actively representing the Petitioner personally in any disciplinary, grievance or other matter. Id. Here, the NEARI representative assigned to appear before the Exeter-West Greenwich School Committee, John Leidecker, also represents the Petitioner’s local teachers’ union in South Kingstown. However, the Petitioner states that John Leidecker is not currently representing her individual interests in any disciplinary, grievance, or other matter relating to her employment as a social worker in South Kingstown, nor has he ever represented her in such a matter. While it is clear that the union representative’s relationship to NEARI, his employer, is that of a business association, his relationship to the Petitioner is not; rather, he is simply an agent of NEARI, representing the entire membership of the Petitioner’s teachers’ union. Furthermore, this Commission has previously opined, as cited above, that a union member who is not an officer or in some other leadership position in the union does not have a business association with the umbrella organization, in this instance, NEARI. Accordingly, and consistent with the many past advisory opinions outlined above, the Petitioner’s mere membership in the South Kingstown teachers’ union does not make her a business associate of either the umbrella organization, NEARI, or its agents assigned to represent the South Kingstown teachers’ union. For these reasons, the Code of Ethics does not prohibit the Petitioner from participating in Exeter-West Greenwich School Committee matters involving NEARI or its agent, John Leidecker. However, if in the future the Petitioner should rise to any type of leadership position in NEARI, or obtain a status beyond that of a mere member, or be individually represented by a NEARI agent that appears before the Exeter-West Greenwich School Committee, then the Petitioner should either recuse from participating or seek further advice from the Commission. Code Citations : § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions : A.O. 2008-15 A.O. 2004-2 A.O. 2003-74 A.O. 2003-18 A.O. 2001-39 A.O. 99-36 A.O. 96-92 Keywords : Business Associate Recusal Unions/Bargaining Unit