Advisory Opinion No. 2010-20 Rhode Island Ethics Commission Advisory Opinion No. 2010-20 Re: Colonel Brendan P. Doherty QUESTION PRESENTED The Petitioner, the Superintendent of the Rhode Island State Police, a state appointed position, requests an advisory opinion regarding whether he may participate in contract negotiations between the Rhode Island Department of Administration and the Rhode Island Troopers' Association ("RITA"). RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Superintendent of the Rhode Island State Police, may participate in contract negotiations between the Rhode Island Department of Administration and the Rhode Island Troopers' Association ("RITA"), provided that he does not participate in discussions or negotiations involving any incentive bonus based on accreditation status. The Petitioner is the Superintendent of the Rhode Island State Police and, as such, serves as the administrative head and commanding officer of the State Police. He represents that the State of Rhode Island is set to begin contract negotiations with the Rhode Island Troopers' Association ("RITA"). RITA represents the one hundred ninety-six (196) Troopers and Non-Commissioned Officers of the State Police. The State Police's thirty (30) Commissioned Officers, who are those holding a rank of Lieutenant and above, are not members of RITA and are therefore not subject to the union contract. However, the Petitioner notes that pursuant to state policy and custom, all sworn officers of the State Police, whether Commissioned or Non-Commissioned, receive the same benefits that RITA members are entitled to receive through their contract. These benefits include such things as health insurance, retirement plans, clothing allowance, and incentive bonuses. Unlike the other Commissioned Officers, however, the Petitioner notes that his terms of employment are set forth in a separate employment contract that are not impacted by the terms of the RITA collective bargaining agreement, with one exception. The Petitioner states that his employment contract entitles him to "any applicable CALEA Accreditation and Flagship bonus."[1] Under the terms of the current RITA collective bargaining agreement, the State Police CALEA accreditation results in a bonus of 3.5% of regular pay. If the State Police acquires CALEA "Flagship Agency" status, there is an additional bonus of 3% of regular pay. As previously set forth, all two hundred twenty-six (226) sworn officers, including the Petitioner, are currently entitled to these bonuses. The Petitioner states that the state negotiating team for the RITA contract is generally led by attorneys for the Department of Administration, along with personnel from the state budget office, the state personnel administrator, the benefits management administrator, the Petitioner and his legal and administrative staff. The Petitioner states that he is not a primary negotiator. Rather, his role is to assist the Department of Administration negotiators in analyzing the impact of contract proposals and counter proposals. Given the fact that his employment contract entitles him to share in any accreditation bonus that is included in the collective bargaining agreement, the Petitioner represents that he will recuse from any discussions concerning such bonuses. Based on these facts and representations, the Petitioner asks whether the Code of Ethics otherwise prohibits his participation in the collective bargaining process. Under the Code of Ethics, a public official 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 in the public interest. R.I. Gen. Laws § 36-14-5(a). An official has an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). In Advisory Opinion 2005-28, the Mayor of the Town of Cumberland, a retired Cumberland police officer, asked whether he could negotiate a contract between the Town and the Fraternal Order of Police. The Mayor represented that the contract negotiations would involve changes to the retirement sections of the contract that would also apply to his own retirement benefits as a retired police officer. Given the Mayor's representation that the contract negotiations would financially impact his retirement benefits, and that the retirement negotiations were intertwined with all other contract issues, the Ethics Commission opined that he was required to recuse from the negotiations. See also A.O. 2005-50 (Johnston Councilman who represented that as a retired police officer he would be financially impacted by changes to the retirement portions of the police contract, and who provided no information regarding application of the class exception, may not vote to ratify the Town's contract with the police union); But Compare A.O. 2007-10 (Lincoln Town Administrator who is retired member of Lincoln Police Department may participate in Town's contract negotiations with Police union, given that his health and retirement benefits are fixed and defined, and will not be impacted by a new collective bargaining agreement); and A.O. 2005-37 (Cumberland Police Chief may provide recommendations and guidance to Town officials who are negotiating a collective bargaining agreement between the Town and the police union). In the instant case, unlike the circumstances outlined in A.O. 2005-28 above, based on the Petitioner's representations as to the existence of his separate, individual employment contract, it appears that all of the contract terms to be negotiated, with the exception of the accreditation bonuses, will have no financial impact upon him whatsoever. As to the issue of the bonuses, the Petitioner advises that he will recuse from providing any input whatsoever. In light of such particular facts, and considering the nature of the Petitioner's involvement in the negotiation process, we find little, if any, opportunity for the Petitioner to financially impact himself during the collective bargaining process. Based on all of the above, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is permitted to participate in contract negotiations between the Rhode Island Department of Administration and the Rhode Island Troopers' Association ("RITA"), subject to his recusal from participation in discussions and negotiations concerning accreditation bonuses. Notice of recusal must be filed with the 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) 36-17-7(b) Regulation 36-14-7001 Related Advisory Opinions: 2007-10 2005-50 2005-37 2005-28 2004-16 2003-57 2003-14 2000-5 98-166 98-162 Keywords: Financial Interest [1] CALEA is the Commission on Accreditation for Law Enforcement, a national law enforcement credentialing authority. CALEA offers standard accreditation based on an agency's performance and compliance with certain standards of excellence, as well as a designation as a "Flagship Agency," which is bestowed only upon certain public safety agencies that demonstrate best practices in areas of compliance, policy development, file maintenance, and other issues relating to the accreditation process. See http://www.calea.org/Online/Awards/flagship.htm