Advisory Opinion No. 99-15

Re: Carol Romano

QUESTION PRESENTED

The petitioner, a Providence City Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate in the Council’s consideration of whether to ratify a Memorandum of Agreement (Agreement) between the administration of the City of Providence and officers of Local 1033 of the Laborers' International Union of North America (Local 1033) under which the City would recognize Local 1033 as the exclusive bargaining representative for twenty-seven defined positions given that the petitioner's brother serves in one of the positions covered by the Agreement.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Providence City Councilor, a municipal elected position, may not participate in the decision on whether to ratify a Memorandum of Agreement that would recognize Local 1033 as the exclusive bargaining unit for twenty-seven additional city employee positions given that her brother serves in one of the positions affected by the Agreement. Here, the petitioner has an interest in substantial conflict with the vote at issue since a decision about whether the twenty-seven employees, including her brother, can participate in the union would affect the financial interests of the employees that serve in the interested positions. Also, the exception set forth in R.I. Gen. Laws § 36-14-7(b), which permits a public official to participate in proceedings so long as they do not affect her or members of her family to any greater extent than any other similarly situated member of a significant and definable class, does not apply here since the Agreement affects a subset of City employees that is neither significant nor definable, as those terms have been interpreted by this Commission.

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 public official has reason to believe or expect that a family member will derive a direct monetary gain by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). However, an official will not have an interest in substantial conflict with her public duties if any benefit accrues to the official or a member of her 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, we have applied the exception set forth in R.I. Gen. Laws § 36-14-7(b) and permitted members of both school committees and town councils who had family members employed in the school system or town to participate in negotiations and/or votes on contracts so long as their family members were part of a significant and definable class; for example, all of the teachers in a school system or all employees represented by a certain bargaining unit. See e.g., A.O. 98-166 (opining that a West Warwick Town Councilor whose daughter was employed by the Town and son was employed by the Police Department could participate and vote on matters relating to police and municipal employee contracts provided that the vote or negotiations did not affect his daughter or son individually or as part of on a smaller subgroup of employees/officers); A.O. 98-162 (advising a Westerly School Committee member whose spouse was employed in the school system that he should vote on matters relating to teacher contracts provided that his wife was not affected individually by the contract, except as a member of the entire class of teachers in the system). However, we have opined that public officials with family members employed by the school system or town may not participate in negotiations or voting when the official's family member was among a small group of employees or a subset of employees to be affected by the matter under consideration. See A.O. 98-32 (concluding that a member of the Johnson School Committee should not participate in negotiations, votes, or other matters affecting the labor contracts with a local labor organization given that the petitioner's wife and mother-in-law were among a subset of members of that union that would be affected by a clause under negotiations), A.O. 97-65 (advising a member of the Scituate School Committee that he should not participate in the consideration of a labor contract with the teachers' aides where his wife was one of 45 teachers' aides in the School Department); and A.O. 97-75 (concluding the Chief of Human Resources for the Department of Environmental Management should not participate in negotiations for a settlement with a bargaining unit for employees of the Division of Parks and Recreation where her brother was one of 85 individuals that were the focus of the ongoing settlement since that group did not constitute a significant and definable class of person so as to trigger the 7(b) exception).

After considering the relevant provisions of the Code of Ethics, namely R.I. Gen. Laws §§ 36-14-5(a), 7(a), and 7(b), and past advisory opinions, we conclude that the petitioner may not participate in the discussions and/or votes regarding the Memorandum of Agreement at issue where her brother is one of twenty-seven individuals affected by the Agreement. Here, it is clear that the vote of whether to include the interested City employees in the local bargaining unit will affect the financial interests of her brother and the other interested parties since inclusion in such a unit will impact what benefits they will receive (union members are usually eligible for additional pension and other benefits through the union that are distinct from the benefits provided by the City) and will provide them with the general civil service protection of a union. Her brother's interest in the vote, therefore, clearly implicates the provisions of Section 5(a), which prohibits an official from acting where it is likely that a family member will derive a direct monetary gain by reason of her official activity.

Also, the class exception set forth in Section 7(b) is not applicable to this situation. Here, the Agreement affects a limited group of twenty-seven City administrators. This group is neither significant nor definable. The facts raised in this request, therefore, are clearly distinguishable from those situations where we have permitted participation in matters affecting a broad and definable group of employees, such as all municipal and school department employees or all employees already recognized by a bargaining unit.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

98-166
98-162
98-32
97-75
97-65

Keywords:

Class exception
Contracts
Family: financial benefit
Nepotism
Union/bargaining unit