Advisory Opinion No. 2010-35 Rhode Island Ethics Commission Advisory Opinion No. 2010-35 Re: David A. Coughlin, Esq. QUESTION PRESENTED The Petitioner, a member of the Pawtucket School Committee, a municipal elected position, requests an advisory opinion regarding the limitations that the Code of Ethics places on him, given that he has a child who is a student in the Pawtucket School District, and a brother and sister-in-law who are teachers in the school district. RESPONSE It is the opinion of the Ethics Commission that the Code of Ethics does place certain restrictions on the Petitioner in carrying out his duties as a member of the Pawtucket School Committee, given that he has a child who is a student in the Pawtucket School District and a brother and sister-in-law who are teachers in the school district. The Petitioner is a member of the Pawtucket School Committee. He states that his son is a student at Tolman High School in Pawtucket who participates in the Advanced Studies Program at that school and also participates in varsity cross country, basketball and volleyball. Additionally, he has a brother and sister-in-law who are teachers in the Pawtucket School District. Given this set of facts, he asks whether he may participate in School Committee discussion and voting regarding the following specific items: (1) the Pawtucket School District; (2) the Pawtucket School District’s secondary schools; (3) Tolman High School; (4) the Pawtucket School District’s Advanced Studies Program; (5) Tolman High School’s Advanced Studies Program; (6) the Pawtucket School District’s High School Sports Programs; (7) Tolman High School’s Sports Programs; (8) contract negotiations with the bargaining units of which his brother and sister-in-law are members; (9) final contracts with those bargaining units; and (10) the Pawtucket School District annual budget, containing line items specific to any of the above items. Petitioner’s Questions 1-7 We first address the Petitioner’s questions regarding his ability to participate in discussion and voting on a variety of matters in which his son participates as a student in the Pawtucket School District. Under the Code of Ethics, a public official or employee 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. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, employer, business associate, or a business that he represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a family member, employer, business associate, or a business that he represents. Finally, Regulation 36-14-5004(b)(1) prohibits public officials from participating in any matter in which there is reason to believe or expect that any person within the official’s family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. While a School Committee member’s child in the ordinary course of attending a public school over which that School Committee has budgetary decision-making authority, undoubtedly receives an experiential and educational benefit from participation in scholastic, athletic, and other extracurricular programs, that benefit, however we may describe it, is not the type of direct financial benefit or gain prohibited by R.I. Gen. Laws §§ 36-14-5(a), 7(a) or Regulation 36-14-5004. Specifically, we opine that the right to attend a public school and receive the benefits of a public education, as guaranteed by R.I. Gen. Laws § 16-2-2 and §16-2-27 and made compulsory by R.I. Gen. Laws § 16-19-1, do not constitute a prohibited direct financial or monetary gain as contemplated by R.I. Gen. Laws §§ 36-14-5(a) and 7(a) or Regulation 36-14-5004(b)(1). This is not to suggest that a public official could participate in his public capacity in matters specific to his individual child’s public education, such as decisions regarding the provision of particularized services to that individual child or disciplinary or other matters in which that individual child is implicated or involved, as those circumstances may give rise to the prohibitions found in Regulation 5004(b)(1), if the child is considered to be a “party to or a participant in such matter.” Accordingly, as to the Petitioner’s questions 1 through 7 regarding participating in discussion and vote on specific matters given that his son is a student at Tolman High School, we opine as follows: (1) the Petitioner is not prohibited from participating in discussion and vote regarding the Pawtucket School District generally; (2) the Petitioner is not prohibited from participating in discussion and vote regarding the Pawtucket School District’s secondary schools generally; (3) the Petitioner is not prohibited from participating in discussion and vote regarding Tolman High School generally; (4) the Petitioner is not prohibited from participating in discussion and vote regarding the Pawtucket School District’s Advanced Studies Program generally; (5) the Petitioner is not prohibited from participating in discussion and vote regarding Tolman High School’s Advanced Studies Program; (6) the Petitioner is not prohibited from participating in discussion and vote regarding the Pawtucket School District’s High School Sports Programs generally; and, (7) the Petitioner is not prohibited from participating in discussion and vote regarding Tolman High School’s Sports Programs. Petitioner’s Questions 8 & 9 Regulation 36-14-5004 specifically addresses questions 8 and 9 raised by the Petitioner concerning his ability to participate in discussion and vote on negotiations and a finalized employment contract impacting his brother and sister-in-law. Subsection (b)(4), in regard to participation in collective bargaining and employee contracts, reads in pertinent part: (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. 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. Accordingly, the Petitioner is prohibited from participating in any School Committee contract negotiations with the local bargaining unit in which the Petitioner’s brother and sister-in-law are members. 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 these contracts in their 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. 2007-40 (opining that a member of the City of North Providence School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and both Local 1033 of the Laborers’ International Union of North America, AFL-CIO and the North Providence Federation of Teachers, Local 920 given that the Petitioner has family members who are members of these two unions, but could vote on the finally negotiated contracts); 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). Although the Petitioner is permitted to participate in the overall vote to approve or reject these contracts, 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 his family members. In such circumstances, the Petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission. Petitioner’s Question 10 In regard to Petitioner’s question 10 about the prohibitions placed upon the Petitioner by the Code of Ethics in the School Committee’s discussion and vote on the School District budget, Regulation 36-14-5004(b)(3), is directly applicable. It reads, in pertinent part: (A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member. (B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member 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. (C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget 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. Regulation 36-14-5004(b)(3). Pursuant to this provision, the Petitioner is prohibited from participating in any School Committee discussion or voting on line items in the School Department budget that would address or affect the employment, compensation or benefits of his brother and sister-in-law. However, the Petitioner is permitted to participate in the School Committee’s discussion and decision-making relative to approving or rejecting the entire budget as a whole. The basis for allowing such participation is an assumption that that a vote on an overall budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code. See A.O. 2007-30 (opining that a member of the East Providence School Committee was prohibited by the Code of Ethics from participating in any budgetary line item relative to bus monitors, given that he had a family member who was employed as a bus monitor, but that he may vote on the budget as a whole). Conclusion Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics to the facts as represented by the Petitioner. This opinion does not address whether any other statutes, rulings, policies, charters, or ordinances prohibit such activity. Code Citations: § 36-14-5(a) § 36-14-7(a) Regulation 36-14-5004 Other Law Cited: R.I. Gen. Laws § 16-2-2 R.I. Gen. Laws § 16-2-27 R.I. Gen. Laws § 16-19-1 Related Advisory Opinions: A.O. 2007-40 A.O. 2007-31 A.O. 2007-30 Keywords: Family: Financial Benefit Nepotism