Advisory Opinion No. 2009-32 Rhode Island Ethics Commission Advisory Opinion No. 2009-32 Re: Joseph Knight QUESTION PRESENTED The Petitioner, a member of the Pawtucket School Committee, a municipal appointed position, requests an advisory opinion as to: 1) at what juncture in the contract negotiating process with the Pawtucket Teachers’ Alliance, Rhode Island Federation of Teachers Local 930, he may participate, given that his wife is a teacher in the Pawtucket School District and a member of Local 930; 2) whether he can participate in contract negotiations with the group representing school department administrators; and 3) whether he can participate in negotiations with AFSCME Council 94, Local 1352, the bargaining unit representing school department non-professional staff. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Pawtucket School Committee, a municipal appointed position: 1) may not participate in negotiations or any discussion regarding negotiations with the Pawtucket Teachers’ Alliance, Rhode Island Federation of Teachers Local 930, including participation in reports from the School Committee labor negotiations sub-committee while negotiations are ongoing, given that his wife is a teacher in the Pawtucket School District and a member of Local 930, but he may participate in the School Committee’s discussion and decision-making relative to approving or rejecting the entire contract as a whole, once it has been negotiated by others; 2) may participate in contract negotiations with the group representing school department administrators; and 3) may participate in negotiations with AFSCME Council 94, Local 1352, the bargaining unit representing school department non-professional staff. The Petitioner is a member of the Pawtucket School Committee (“School Committee”). He represents that his wife is a teacher in the Pawtucket School District (“school district”) and is a member of the Pawtucket Teachers’ Alliance, Rhode Island Federation of Teachers (“RIFT”) Local 930 (“the teachers’ union”), which is the collective bargaining agent for Pawtucket teachers. The Petitioner states that the school district recently sought to reopen negotiations with the teachers’ union. The Petitioner affirmatively represents that he will recuse from participation in these negotiations, given his wife’s membership in Local 930. However, the Petitioner seeks clarification as to whether he is permitted to attend when the School Committee’s labor negotiations sub-committee provides status reports regarding the ongoing negotiations. Commission Regulation 36-14-5004 specifically addresses this first 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(b)(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 a member of his family is a union member who will be impacted by the contract. This prohibition would also extend to attending ongoing status updates from the School Committee’s labor negotiations sub-committee regarding ongoing negotiations with the teachers’ union, given that such status updates could easily lead to discussion regarding specific contract provisions, concessions, strategies, and other matters that may influence the outcome of negotiations. 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 it has been negotiated by others. The basis for allowing such participation is an assumption that a vote on 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. 2008-44 (opining that a member of the CHARIHO Regional School Committee 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, but that she was permitted to participate in the overall vote to approve or reject the contract); A.O. 2007-31(opining that 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 a family member who is a member of the union, but that the Petitioner may participate in the School Committee’s decision to accept or reject a contract already negotiated). 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 his family member. In such circumstances, the Petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission. In regard to the Petitioner’s second and third questions, whether he is prohibited by the Code of Ethics from participating in contract negotiations with the school administrators’ group, which he states is not represented by a certified bargaining agent, and with AFSCME Council 94 (“Council 94”), Local 1352 (“Local 1352”), the bargaining unit representing the non-professional school department staff, the analysis is identical. These two entities, one of which is represented by an independent unit with no umbrella affiliation, and the other of which is represented by a local unit of Council 94, are totally separate from the teachers’ union, which is represented by a local unit of the American Federation of Teachers. Given that none of the three units share the same umbrella organization, which in and of itself would be insufficient to prohibit the Petitioner’s participation in contract negotiations, barring any other relationship or set of facts that would implicate the prohibitions found in the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in contract negotiations between the School Committee and these two entities. It should be noted that in a prior advisory opinion, 99-097, this Commission had prohibited a member of the Pawtucket School Committee from participating in contract negotiations and voting regarding health benefits with Local 1352, based on the fact that, at that time, School Committee members by custom had historically received the same health benefits as that local. In that advisory opinion, the Commission noted that “there was no relevant ordinance that sets benefits for the School Committee” and that by participating in the negotiations, it was “reasonably foreseeable that such actions would affect [the Petitioner] as a member of the School Committee.” Id. Since the issuance of that advisory opinion, however, the City of Pawtucket has adopted Codified Ordinance § 88- 28(b) (effective January 6, 2003), which states that “[t]he health and dental benefits received by the members of the School Committee shall be the same as the health and dental benefits received by the members of the City Council.” As such, this Petitioner is not prohibited from participating in negotiations with Local 1352, given that such negotiations will no longer impact the health benefits that he receives as a School Committee member. Code Citations : Commission Regulation 36-14-5004 Related Law Cited : Pawtucket Codified Ordinance § 88-28(b) Related Advisory Opinions : 2008-44 2007-31 99-97 Keywords : Contracts Nepotism