Advisory Opinion No. 98-32

Re: Peter A. DelPonte

A. QUESTION PRESENTED

The Petitioner, the Vice Chairperson of the Johnston School Committee, a municipal elected official, requests an advisory opinion as to whether he may participate in the negotiations to develop a successor contract with the Independent Association of Employees, Local 7, ("Local 7") the labor organization representing 152 unclassified School Department employees, if his mother-in-law and wife are unclassified employees represented by Local 7 and his mother-in-law is among a group of 45 employees to be affected by a new clause in the contract regarding family Blue Cross benefits.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Vice Chairperson of the Johnston School Committee, a municipal elected position, should not participate in negotiations, votes or other matters affecting the labor contract with the Independent Association of Employees, Local 7 ("Local 7"), a labor organization representing 152 unclassified employees of the School Department, given that his wife and mother-in-law are unclassified employees represented by Local 7 and his mother-in-law is one of 45 unclassified employees that would be affected by a clause under negotiations regarding family Blue Cross benefits for retired employees. The Petitioner's participation in the negotiations or votes on the contract would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d). Here, the exception set forth in R.I. Gen. Laws § 36-14-7(b) does not apply since the negotiations affect a subset of teachers/employees in the School Department and one of the clauses under negotiations concerning family Blue Cross benefits would affect a subset of the unclassified employees, including the Petitioner's mother-in-law.

C. DISCUSSION

1. Facts

The Johnston School Committee is negotiating with the Independent Association of Employees, Local 7 ("Local 7"), a labor organization representing approximately 152 unclassified School Department employees, to develop a successor employment contract. Under the current contract, all covered employees, who have at least ten years of service with the School Department, are entitled to receive full family Blue Cross coverage upon retirement until they reach the age of sixty-five. The School Committee has proposed eliminating this coverage and the parties continue to negotiate regarding this benefit. (In his request, the Petitioner indicated that he withdrew from the negotiations regarding this contract in the "early stages." Since his withdrawal, negotiations between the parties have slowed and he now believes that his "involvement would be helpful to the School Committee and to the negotiation process.")

The Petitioner's mother-in-law and wife serve as teachers' aides for the School Department and are represented by Local 7. The Petitioner's mother-in-law, who has been employed by the School Department for twelve years, is among a group of 45 employees who would be affected by the proposal to eliminate family Blue Cross coverage upon retirement.

2. Analysis

The Code of Ethics prohibits public officials from taking any official action that is likely to have a direct financial or monetary impact on, among others, a family member or from having an interest which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that a family member will derive a direct monetary gain by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). However, an official will not have an interest which is in substantial conflict with his public duties if any benefit accrues to the official or a member of his family, "as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group." R.I. Gen. Laws § 36-14-7(b).

Previously, citing the exception set forth in R.I. Gen. Laws § 36-14-7(b), we have permitted members of a school committee to participate and vote on budgetary/contract matters affecting teachers or employees in the entire school system even though the member had a family member employed by the school department, so long as the family member would not be affected by the official's participation to any greater extent than other similarly situated teachers\employees. See e.g., A.O. 97-52 (advising a member of the Cranston School Committee that he could participate and vote on budgetary/contract matters affecting teachers and employees in the school system as long as his wife would not be affected by his participation to any greater extent than any other similarly situated teachers/employees); and A.O. 94-29 (opining that the Petitioner could serve on the West Warwick School Committee, negotiate contracts, vote on budgets, and perform other school committee business while his wife was simultaneously employed by the School Department). However, if a matter under consideration specifically affected the official's family member or a subset of teachers/employees that included the official's family member, we have uniformly advised the official to follow the notice and recusal provisions set forth in R.I. Gen. Laws § 36-14-6. Id.

Recently, we also have concluded that the exception set forth in R.I. Gen. Laws § 36-14-7(b) does not apply in situations where the Petitioner's family member, although an employee of the school system, is among a small group of employees or a subset of employees to be affected by the negotiations or any matter under consideration. See A.O. 97-65 and A.O. 97-75. In A.O. 97-65, we advised a member of the Scituate School Committee, who requested guidance as to whether he could participate in the votes or negotiations regarding labor contracts with three non-certified employee groups, that he could not participate in negotiations, votes or other matters affecting the labor contract with the teacher's aides since his wife was one of 45 teachers' aides in the School Department. In that opinion, we specifically concluded that "an employee group of 45 members in a single school system does not constitute such a significant and definable class of person so as to trigger the 7(b) exception." Similarly, in A.O. 97-75, we advised the Chief of Human Resources for the Department of Environmental Management, who requested guidance as to whether she could participate in negotiations for a settlement agreement with a bargaining unit for employees of the Division of Parks & Recreation, that she could not participate in matters concerning the settlement agreement since her brother was one of the potential recipients of back pay, which was the focus of the ongoing settlement. In that case, we recognized that "an employee group of approximately 85 members within a single division, in this instance, the Department of Environmental Management, does not constitute such a significant and definable class of persons so as to trigger the 7(b) exception."

After considering the relevant provisions of the Code of Ethics and past advisory opinions, we conclude that the Petitioner may not participate in the negotiations or votes concerning the contract with Local 7 given the interest of his family members, namely his mother-in-law, in this contract. Here, the negotiations concern a subset of the employees of the School Department, the unclassified employees, which includes the Petitioner's mother-in-law and wife and, accordingly, is distinguishable from the past opinions where we have permitted participation under the § 7(b) exception. Also, in this case the Petitioner's mother-in-law is one of forty-five employees that would be affected by any change to the family Blue Cross benefit under consideration. Therefore, since the negotiations concern a subset of employees of the School Department and one of the matters under consideration will specifically affect the Petitioner's mother-in-law as one of a subset of 45 employees, the Code of Ethics, namely R.I. Gen. Laws § § 36-14-5(a) and 5(d), would prohibit the Petitioner from participating in the negotiations or votes concerning the contract with Local 7.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

97-75

97-65

97-52

94-29

Keywords:

Class exception

Contracts

Family: financial benefit

Nepotism

Union/bargaining unit