Advisory Opinion No. 99-55

Re: Michael J. Carreira

QUESTION PRESENTED

The petitioner, the Tiverton School Department Business Manager, a municipal employee position, requests an advisory opinion as to whether he may participate in negotiations with the NEA teachers union to develop a new contract given that his son-in-law is a teacher in the Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Tiverton School Department Business Manager, a municipal employee position, may participate in contract negotiations with the NEA teachers union provided that it is not reasonably foreseeable that terms of the contract to be considered could affect his son-in-law individually except as a member of the entire class of teachers. This opinion is based on and limited by Section 7(b) of the Code which provides that the petitioner may participate in actions as a public employee so long as they do not affect him or his family to any greater extent than any other similarly situated member of a significant and definable class.

The Code of Ethics provides that the petitioner may not participate in any matter in which he or his family 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 official duties if he/she has a reason to believe or expect 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). Commission Regulation 36-14-5005 includes relatives, specifically sons whether by blood, marriage, or adoption as members of one's family. 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).

The petitioner represents that he is a member to the negotiating team for the Tiverton NEA teachers contract. He represents that his son-in-law is a teacher in the school system and that there are approximately 180 teachers that are subject to this contract. At this time, the petitioner does not forsee that subgroups of teachers will be treated any differently than as a member of the entire class of teachers.

The Ethics Commission has concluded in past advisory opinions that School Committee members with family members in the school system could participate in negotiations and voting on the contract so long as the family members were part of a significant and definable class; for example, all of the teachers in a school system. Correspondingly, the Commission has concluded that School Committee members with family members in the school system may not participate in negotiations or voting when a matter concerning a family member's subset of teachers (e.g., nurses or teachers aides) or the family member individually came before them. See A.O. 97-65 and A.O. 95-23. In situations requiring recusal the petitioner should follow the dictates of Section 6 of the Code and complete a recusal form, filing a copy with the Ethics Commission.

(Note that the issue of whether the class exception should apply to school committee/family member issues has been discussed at various junctures over the years by the Commission. Additionally, whether there should be more restrictions for negotiating contracts since one does not know at the outset whether or to what extent all the persons subject to the contract will be treated the same has been in issue in this and in other contexts. See A.O. 92-53 (concluding that a Tiverton School Committee member could not participate in negotiations of the new teachers' contract because his spouse is a teacher covered by that contract). See also various opinions issued to legislators finding that they could not participate in negotiations related to pension benefits for state workers and teachers since they had an interest and because the class exception could not be applied because of the tentative nature of which groups would be significant and definable during the negotiations.) A.O. 95-54, A.O. 95-55, A.O. 95-56, A.O. 95-63, A.O. 95-64, A.O. 95-69, A.O. 95-70, A.O. 95-75.)

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5005

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

99-36

99-4

98-172

98-162

98-130

98-32

97-118

97-65

97-52

96-96

96-60

95-54

95-63

95-64

96-69

95-70

95-75

95-23

94-44

94-29

94-27

92-53

Keywords:

Class exception

Contracts

Family member: public employment

Negotiations

Unions/bargaining unit