Advisory Opinion No. 95-69 Re: The Honorable Lawrence J. Ferguson A. QUESTION PRESENTED Whether a member and Subcommittee Chairman of the House Committee on Finance, who has been a public school teacher for twenty-four years and is an active member of the State Retirement System may participate in discussions and vote on matters in the legislature concerning the Rhode Island pension system. B. SUMMARY Pursuant to the Rhode Island Code of Ethics, a member and Subcommittee Chairman of the House Committee on Finance who has been a public school teacher for twenty-four years and is an active member of the State Retirement System, should not participate in matters related to pension benefits to state workers and teachers when such participation entails involvement in the negotiation process, except in situations in which it is clear that the particular matter or item being discussed or negotiated in no way could affect his rights or entitlements as a participant in the state's pension system. Given that it is impossible to determine which groups will be significant and definable during such negotiations and given that a legislator may play a role in defining the groups to be affected by the pension legislation, relying on the R.I. Gen. Laws § 36-14-7(b) exception is not appropriate. However, the Commission finds that the Code of Ethics may allow the legislator to vote on proposed legislation relating to such pension benefits, depending upon the provisions ultimately included in the bills that come to a vote. C. DISCUSSION 1. Facts Lawrence J. Ferguson, a member and Subcommittee Chairman of the House Committee on Finance, has been a public school teacher for twenty-four years and is an active member of the State Retirement System. He requests an advisory opinion as to whether he may participate in discussions and vote on matters concerning the Rhode Island pension system. 2. Analysis At issue in this advisory opinion request is whether a member and Subcommittee Chairman of the House Committee on Finance, who has been a school teacher for twenty-four years, may participate and vote on matters relating to pension benefits to state workers and teachers. A person subject to the Code of Ethics is 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 he or she, any person within his or her family, any business associate, or any business by which the person is employed or which the person represents 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 affected 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) an official act by a public official which benefits said official as an individual, and (b) an official 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 with 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 legislators' decisions are guided by the public interest, not a particular legislator's self-interest. See 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 affects 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 retired 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 serves 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 Committee to participate in the renewal of a collective bargaining contract with a union of which his son is a member (Advisory Opinion 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 (Advisory Opinion 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, a member and Subcommittee Chairman of the House Committee on Finance and a pubic school teacher for twenty-four years and an active member of the State Retirement System, 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 between 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 would be problematic for two reasons. 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 affected 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 affected by the pension legislation and determine the extent of this impact. Therefore, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics will not permit Rep. Ferguson to participate in negotiations, directly or indirectly, and other preliminary matters pertaining to pension benefits to state workers and teachers. Such participation may represent activities in substantial conflict with the proper discharge of his duties in the public interest. Accordingly, we advise Rep. Ferguson to exercise notice and recusal pursuant to R.I. Gen. Laws § 36-14-6 when legislation concerning pension benefits to state workers and teachers is under discussion. However, Rep. Ferguson may vote on said legislation in its final form assuming that the particular legislative provisions benefit him to no greater extent than any other similarly situated persons within his profession, and assuming those similarly situated persons constitute a significant and definable class of persons. In this case, if legislation concerning pension benefits to state workers and teachers affects all retirees or prospective retirees in like manner, Rep. Ferguson clearly may vote without violating the Code of Ethics given the enormous size of that class of persons. We therefore advise the petitioner that, should the ultimate pension legislation include him within 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. If, however, the legislation treats different classes and/or categories of teachers differently, relying on the exception presented in R.I. Gen. Laws § 36-14-7(b) would no longer be appropriate. 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 public 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, while Rep. Ferguson may not participate in negotiations or discussions concerning the pension benefits legislation, he is permitted to publicly express his own viewpoint in a public forum on matters of general public interest--in legislative committees holding public hearings on such legislation, for example--or on 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