Advisory Opinion No. 97-91 Re: Joseph Virgilio A. QUESTION PRESENTED The Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, who also serves as President and Business Manager of the Public Service Employees' Local Union 1033 (Local 1033) of the Laborers' International Union of North America, AFL-CIO (Laborers' Union) and President of the Rhode Island Laborers' District Council (District Council), a regional umbrella organization of local unions affiliated with the Laborers' Union, requests an advisory opinion as to whether 1) he may participate in the Labor Relations Board's consideration of matters involving local unions affiliated with the District Council; or, 2) if he may not participate while he serves as President of the District Council, he may participate in such proceedings if he relinquishes his position as President. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, may not participate in the Board's consideration of matters involving local unions affiliated with the District Council while he serves as President of the District Council. This opinion is consistent with previous advisory opinions which have recognized that public officials have a business association with an organization in which they serve either on the Board of Directors or in other leadership positions that permits them to affect the financial objectives of the organization. The Petitioner, however, may participate in matters involving local unions other than Local 1033 if he resigns his position as President of the District Council since he will longer be in a position to significantly affect the financial objectives of the other local unions. C. DISCUSSION 1. Facts The Petitioner has served as a member of the Labor Relations Board, a five member Board appointed by the Governor, as a Labor representative. (The State Labor Relations Board is a five member board appointed by the Governor. Pursuant to R.I. Gen. Laws § 28-7-4, the Governor must appoint a) two representatives of labor; b) one representative from industry; c) one representative of local government; and d) one representative from the general public.) As part of its duties, the Labor Relations Board a) adjudicates claims of unfair labor practices (i.e., bad faith bargaining, failure to bargain, unilateral changes in terms of employment); b) regulates and administers the process by which a union organizes a public sector work force; and c) decides issues concerning the composition of collective bargaining units. In his private capacity, the Petitioner serves as President and Business Manager of Public Service Employees' Local Union 1033 (Local 1033), a local affiliate of the Laborers' International Union of North America, AFL-CIO (Laborers' Union). As President and Business Manager of Local 1033, the Petitioner a) negotiates and enforces Collective Bargaining Agreements with various employers; b) organizes new groups of employees; and c) chairs meetings of the membership of Local 1033. In addition to serving as President/Business Manager of Local 1033, the Petitioner serves as the President of the Rhode Island Laborers' District Council, a regional organization of Local Unions affiliated with the Laborers' Union. According to the Petitioner, as President of the District Council, he a) chairs meetings of Delegates and the Executive Board; and b) counter-signs checks drawn by the Secretary-Treasurer. The Petitioner advises that, during meetings of Delegates to the District Council, representatives from the local unions report on the status of disputes before the Labor Relations Board. 2. Analysis Under the Code of Ethics, the Petitioner, as a member of the Labor Relations Board, 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 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. Here, the Petitioner seeks guidance as to whether he may participate in the Board's consideration of matters involving local unions affiliated with the District Council while he serves as President of this Council. (In his request, the Petitioner advised that he will recuse himself from any matter before the Board in which Local 1033 is a party.) To address this issue, we must first decide whether the Petitioner's relationship with the District Council and the local unions which comprise this organization constitute business associations, and, therefore, fall within the parameters of the Code. In past advisory opinions, this Commission has concluded that public officials are "business associates," as the term is defined in R.I. Gen. Laws § 36-14-2(8), of those entities in which they served either as a member of the Board of Directors or in other leadership positions of the organization which permitted them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required the official to recuse himself or herself if the interests of the organization appeared before his or her public agency. See 96-75 (advising three members of the General Assembly who also served as members of the Board of Directors of local hospitals to recuse themselves from hospital issues since they had a business association with the local hospitals); A.O. 95-59 (requiring a member of the Smithfield School Committee to recuse himself from a vote concerning a community organization if the official's association with the organization allowed him to affect the financial objectives of the organization). More specifically, as to whether a member of a local union must recuse himself if the interest of another affiliated local union was before his agency, the Conflict of Interest Commission, the predecessor to the Ethics Commission, opined that he must. In that decision, although not referencing business association, advised a Fire Commissioner for the Cumberland Hill Fire District, who was also an employee of the Woonsocket Fire Department and a member of the International Association of Fire fighters (Local 732), to recuse himself from the Fire District's consideration of employment contracts with the permanent fire fighters of the Cumberland Hill Fire District who belonged to another Local affiliation of the International Association of Fire Fighters (Local 2762). See A.O. 86-25. The Conflict of Interest Commission reasoned that recusal was appropriate because, although the contract involved a separate local, the union generally attempts to achieve similarity in contract terms for each of its locals and that benefits obtained by one local may be used as guidelines or examples during subsequent negotiations. Id. More recently, however, as to this issue, we advised a member of Rhode Island Laborers' Local 1215 who served as the Chairperson of the Westerly Housing Authority Board of Commissions that he could participate in the consideration of a contract with Rhode Island Laborers' Local 1217 notwithstanding the fact that he was a member of a different local of the same union since he was not a business associate of Local 1217. See A.O. 96-92. See also 96-60 (advising a member of the Narragansett Personnel Board of Appeal that she could participate in grievances of employees represented by Local 1033 even though she was a member of that union since she was not a union official and that any benefits she received would not be affected by any decision of the Narragansett Personnel Board). Here, the Petitioner, is the President of the District Council, the regional umbrella organization of local unions affiliated with the Laborers' Union. After considering the relevant provisions of the Code and past advisory opinions addressing union affiliation and the business association relationship, it is our opinion that, given his leadership position with the District Council, the Petitioner must recuse himself from the Board's consideration of any matter involving a local union affiliated with the District Council. We base this decision on the fact that the Petitioner, as the President of the District Council, is in a position to affect the financial objectives of other local unions in this organization, and, as such, his relationship with the District Council and the other local unions which comprise this organization's is that of a business association, thereby necessitating recusal. However, we advise the Petitioner that, if he relinquishes his position as President and member of the Executive Board of the District Council, he, as a mere delegate to the District Council, will not have such a business or fiduciary relationship with the other local unions which would require him to recuse himself from matters involving or concerning other local unions. See A.O. 96-92 and A.O. 96-60. However, we caution the Petitioner that, regardless of the nature of his relationship with the District Council, he may not participate in matters concerning Public Service Employees' Local Union 1033 of the Laborers' International Union of North America, AFL-CIO, that come before the Labor Relations Board given that he is President and Business Manager of that union. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(f) 36-14-7(a) Related Advisory Opinions: 96-92 96-75 96-60 95-59 86-25 Keywords: business associate business interest