Advisory Opinion No. 95-55

Re: The Honorable J. Michael Lenihan

A.QUESTION PRESENTED

The Chairman of the Senate Committee on Finance, who is simultaneously a public school teacher for the past twenty-seven years, requests an advisory opinion as to whether he may participate in the development of that portion of the state budget pertaining to state employee and teacher pensions.

B.SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Chairman of the Senate Committee on Finance, who has been a public school teacher for twenty-seven years, may participate in the development of that portion of the state budget pertaining to pensions for state employees and teachers because, based on specific factual representations made by Senator Lenihan, the pension matters that are subject to discussion, negotiation and votes as part of the budget process either a) do not effect him in any way, or b) effect him to no greater extent than any other similarly situated member of a significant and definable class of persons (here, a class of pension recipients totalling anywhere from 30,000 to more than 40,000 individuals).

C.DISCUSSION

1. Facts

Senator J. Michael Lenihan, Chairman of the Senate Committee on Finance, advises that he has been a public school teacher for twenty-seven years. He has not yet retired but is eligible to do so. He requests an advisory opinion as to whether he may participate in the development of the state budget concerning state employee and teacher pensions. Some of Governor Almond's proposed changes to the pension system would not affect him at all, while others would impact him only as a member of a significant and definable class of persons. In this regard, the petitioner advises that he is one member of a class of between 30,000 to some 43,000 retirees or prospective retirees in the state public school system and that, as such, he assumes that R.I. Gen. Laws § 36-14-7(b) applies to his situation.

2. Analysis

At issue in this advisory opinion request is whether a the Chairman of the Senate Committee on Finance who is simultaneously a school teacher with retirement eligibility may participate and vote on matters relating to pension benefits to state workers and teachers. Persons subject to the Code of Ethics are prohibited from using his or her public position or confidential information received through holding any public office to obtain financial gain, other than that provided by law, pursuant to R.I. Gen. Laws § 36-14-5(d). The Code of Ethics also provides that a public official has an interest in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities as prescribed in the laws of this state, if he or she has reason to believe they will derive a direct monetary gain by reason of his or her official activity, pursuant to R.I. Gen. Laws § 36-14-7(a). An exception is created to the conflict of interest law by R.I. Gen. Laws § 36-14-7(b) in that it allows a public official, who is simultaneously a member of a business, profession, occupation, or group to take public action when he or she is impacted by said public action as a member of a significant and definable class that benefits to no greater extent than any other similarly situated member of said class.

In past decisions, this Commission has endeavored to clarify the distinction between a public act by a public official which benefits said official as an individual and a public act by a public official that benefits a significant and definable class of individuals such as a business sector, a profession, an occupation or other group to which the official is associated and from which the public official benefits to no greater extent than other similarly situated individuals. While the Commission recognizes that legislators are drawn from various occupational backgrounds and professions and bring valuable expertise to the Legislature based on their occupations and professional affiliations, it is imperative that legislator's decisions are guided by the public interest, not a particular legislator's self-interest. General Commission Advisory Opinion No. 13. Accordingly, R.I. Gen. Laws § 36-14-7(b) provides that a public official does not violate the Code of Ethics when an official act impacts said public official as a member of a significant and definable class of persons to no greater or lesser extent than any other similarly situated member of that class.

The test presented by R.I. Gen. Laws § 36-14-7(b), relying as it does on the existence of a significant and definable class and that the public official in question be affected to no greater or lesser extent than others similarly situated, has been utilized in various Commission decisions: allowing a member of the General Assembly, simultaneously employed as a social worker, to participate and vote on legislation that would narrow the scope of individuals allowed to identify themselves as social workers (Advisory Opinion 94-25); allowing a Bristol school teacher, simultaneously serving on a negotiating subcommittee of the Bristol School Committee, to participate in the Collective Bargaining Agreement while her emancipated son simultaneously services as a school teacher for the Bristol School Department (Advisory Opinion 89-38); allowing a member of the Rhode Island Marine Fisheries Council, who simultaneously owns and operates a commercial fishing business, to participate and vote on a regulation related to winter flounder (Advisory Opinion 92-10); allowing the Coventry Town Solicitor, also representing the School Committee and married to a teacher in the Coventry School Department, to continue to advise the Coventry School Committee (Advisory Opinion 91-27); allowing the Chairman of the Newport School Department to participate in the renewal of a collective bargaining contract with a union of which his son is a member (91-39); allowing a State Senator, simultaneously employed as a tenured high school teacher in the Lincoln Public School system, to participate and vote on matters concerning contract disputes by public school teachers (93-55).

At this juncture, this Commission must provide further guidance in the interpretation of R.I. Gen. Laws § 36-14-7(b) so that this exception is utilized in a manner consistent with the spirit of the law. The Petitioner, simultaneously the Chairman of the Senate Committee on Finance and a school teacher with eligibility for retirement, requests an advisory opinion as to whether he may participate and vote on matters related to pension benefits to state workers and teachers. Given the nature of the legislative process--involving as it does negotiations among the Governor's Office and the General Assembly, with likely input from other interested parties, as to the form the legislation will ultimately take--this Commission finds that the petitioner's involvement in said process raises two concerns. First, during this negotiation period, the "significant and definable class" which triggers the R.I. Gen. Laws § 36-14-7(b) exception may not be evident due to the shifting definitions of groups which may or may not be impacted by proposed legislation. Second, the petitioner's participation in the discussions of the pension benefits legislation places him in a position in which he may participate in defining the groups to be impacted by the pension legislation and determine the extent of this impact. Senator Lenihan has advised the Commission, however, that some of Governor Almond's proposed changes to the pension system would not affect him at all, while others would impact him only as a member of a significant and definable class of persons. In this regard, the petitioner advises that he is one member of a class of between 30,000 to some 43,000 retirees or prospective retirees in the state public school system and that, as such, he assumes that R.I. Gen. Laws § 36-14-7(b) applies to his situations. For purposes of formulating its advisory opinion the Commission accepts those representations and, as a result, finds that the 7(b) exception is applicable here.

Therefore, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics will permit Senator Lenihan, Chairman of the Senate Committee on Finance and a school teacher with eligibility for retirement, to participate in negotiations and other perliminary matters pertaining to pension benefits to state workers and teachers. Such participation does not represent activities in substantial conflict with the proper discharge of his duties in the public interest because either a) the particular issues subject to discussion, negotiation and votes in no way impact Senator Lenihan or b) to the extent he is impacted it is as a member of a significant and definable class of persons numbering anywhere from approximately 30,000 to 43,000 individuals. See Advisory Opinion 94-25 for discussion on some related issues.

Also, Senator Lenihan may vote on said legislation in its final form if he finds that, in his capacity as a school teacher approaching eligibility for retirement, he benefits to no greater extent than a significant and definable class as defined in R.I. Gen. Laws § 36-14-7(b). In this case, if legislation concerning pension benefits to state workers and teachers affects all pensioners and prospective pensioners in like manner, Senator Lenihan clearly may vote without violating the Code of Ethics given the enormous size of that class of persons. If, however, the legislation treats different classes and/or categories of pensioners and proposed pensioners differently that likely would preclude relying on 7(b)'s exception. We therefore advise the petitioner that, should the ultimate pension legislation include him within a such a significant and definable class, he should prepare a conflict of interest statement as required under R.I. Gen. Laws § 36-14-6, and file that statement with the House of Representatives and the Rhode Island Ethics Commission prior to voting in connection with this legislation.

We further caution and advise the petitioner that in the event that any matter appears before him in his capacity as a member of the General Assembly which affects him specifically and individually as a school teacher or a small segment of teachers of which he is a associated, or in the event his duality of status should ever impair his independence of judgement as to his official duties or require him to disclose confidential information prohibited by R.I. Gen. Laws § 36-15-5(d), he should: (a) notify the Speaker of the House, in writing, of the nature of his interest in the matter at issue; (b) refrain from any participation and/or voting in connection with said matter. Notice of any recusal should also be filed with the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Finally, Senator Lenihan also is permitted to publicly express his own viewpoint in a public forum in matters of general public interest--in legislative committees holding public hearings on such legislation, for example--or in a matter which directly affects him pursuant to R.I. Gen. Laws § 36-14-7003 ("the public forum exception").

Keywords

Pension Benefit

Budgets

Negotiations

Class Exception