Advisory Opinion No. 97-19 Re: Henry Boeniger A. QUESTION PRESENTED The Petitioner, Vice-President of the Westerly Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate in the consideration of the Town's budget, which includes the budget for the School Department, where he is a full-time salaried employee of the Rhode Island Office of the National Education Association (NEA), the organization which represents the Westerly Teachers' Association. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Vice-President of the Westerly Town Council, a municipal elected position, may participate in the Council's consideration of the Town budget provided that the Council does not consider the School Department's budget as a separate line-item. If the Council considers the School Department budget as a separate line-item, given his employment relationship with the NEA, the representative for the Westerly Teachers' Association, the Petitioner should recuse himself from any discussions or votes relating to this line-item. C. DISCUSSION 1. Facts The Petitioner was elected to the Westerly Town Council in November of 1996. In his private capacity, the Petitioner serves as a Government Relations Representative for the Rhode Island Office of the National Education Association (NEA), the entity that represents the Teachers' Association in contract negotiations. (According to the Petitioner, the Town's present contract with the Westerly Teachers' Association will remain in effect until 1998.) As a Government Relations Representative, the Petitioner is responsible for, among other things, monitoring legislative initiatives, lobbying legislators, and dealing with Political Action Committees. The Petitioner advises that, as an employee of NEA, he does not serve as a negotiator or business agent and, as such, was not involved with the contract negotiated on behalf of the Westerly Teachers' Association, which will remain in effect until 1998. The Petitioner seeks guidance whether he may participate in the Council's consideration of the Town's budget, which includes a line-item for the School Department's budget. According to the Petitioner, the Town Council may, by a majority vote, change the total funds (i.e. the bottom line) to be allocated to the School Department. The Town Council, however, may not dictate how the School Department Budget dispenses with the allocated funds. The Petitioner also advises that, once the School Committee enters into a contract with the Teachers' Association, the funds to be allocated to the teachers remains fixed during the duration of the contract. 2. Analysis Under the Code of Ethics, the Petitioner, as a member of the Westerly Town Council, 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), 36-14-7(a). An official will have an interest in substantial conflict with his or her 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, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Also, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or any business by which he is employed or represents. (A "business associate" is defined as any individual or entity joined with a public official "to achieve a common financial objective." See R.I. Gen. Laws § 36-14-2(8).) Section 5(b) of the Code prohibits the Petitioner from accepting other employment which would impair his independence of judgment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, section 5(f) of the Code requires the Petitioner to recuse himself from voting or participating in consideration and disposition of a matter involving a business associate. The Petitioner seeks guidance as to whether he may participate in the Council's consideration of the Town's budget, which incudes funding for the School Department. In past advisory opinions, this Commission has required public officials to recuse themselves from a matter if it involves the interest of an employer or business associate. See A.O. 91-41 (recommending that a Bristol Town Councilor who was also a liquor sales person could not participate in matters concerning liquor licensing given that the Councilor's employer would likely suffer a direct monetary gain or direct monetary loss by reason of his official activity); A.O. 90-57 (concluding that a Town Councilor, who operated a day care business, could not participate in matters relating to new zoning regulations of the day care industry since the consideration of such matters created a substantial conflict with his public duties) Here, the Petitioner's employer, the NEA, as the representative of the Westerly Teachers' Association, has a direct financial interest in the School Department's budget. Given this interest, the Petitioner should recuse himself from any proceeding in which the Town Council considers the School Department's budget as a separate line-item. (The is not a situation which raises the exception set forth in R.I. Gen. Laws § 36-14-7(b), which permits an official to participate notwithstanding a conflict if the benefit to him is no greater than to any similarly situated member of his business, profession, occupation, or group or significant and definable class of persons. Here, the issue concerns whether the Petitioner may participate in matters which affect his employer; the Petitioner is not a member of the class or group (i.e. the Teachers' Association) which will be affected by his participation. See generally A.O. 96-66.) The Petitioner, however, is not precluded from participating in the Town Council's consideration of the entire budget if the Council does not consider the School Department's budget as a separate line-item. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(f) 36-14-7(a) Related Advisory Opinion: 96-66 91-41 90-57 Keywords: business associate business interest financial interest private employment