Advisory Opinion No. 2013-44 RHODE ISLAND ETHICS COMMISSION Advisory Opinion No. 2013-44 Approved: December 17, 2013 Re: Ronald Iannetta QUESTION PRESENTED: The Petitioner, a member of the North Providence School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the School Committee’s discussion and vote regarding whether to request arbitration for the contract negotiations with the Teachers’ Union, given that his daughter is a member of the Teachers’ Union. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Providence School Committee, a municipal elected position, is prohibited from participating in the School Committee’s discussion and vote regarding whether to request arbitration for the contract negotiations with the Teachers’ Union, given that his daughter is a member of the Teachers’ Union and such a vote is part of the negotiations process. However, the Petitioner may participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by others, provided that his daughter is impacted by the contract as a member of a significant and definable class of persons and not individually or to any greater extent than other similarly situated members of the Teachers’ Union, in accordance with Commission Regulation 36-14-5004(b)(4). The Petitioner is a member of the North Providence School Committee (“School Committee”). He represents that his daughter is a fourth-grade teacher in the North Providence School Department and is also a member of the North Providence Federation of Teachers Local 920, American Federation of Teachers AFL-CIO (“Teachers’ Union”). The Petitioner states that the School Committee is in the process of negotiating a new collective bargaining agreement (“CBA”) with the Teachers’ Union, given that the prior CBA expired on August 31, 2013. Cognizant of the Code of Ethics, he states that he has not been involved in the negotiations process. However, he informs that the negotiating subcommittee has recommended that the School Committee make a request to send the contract dispute to arbitration.[1] He states that the School Committee’s discussions regarding whether or not to request arbitration, which will occur in executive session, could include information related to the status of the negotiations and the issues for which there are stalemates. He further states that even if the School Committee votes to request arbitration the parties may still continue to negotiate or may settle the dispute. Finally, he informs that the arbitrator’s decision is only binding on non-monetary issues and the School Committee would have the right to reject the arbitrator’s decision as to monetary issues and either unilaterally change the terms or continue negotiating. Given the above representations, the Petitioner seeks advice as to whether his participation in the School Committee’s vote on whether proceed to arbitration is prohibited by the Code of Ethics. Commission Regulation 36-14-5004 (“Regulation 5004”) contains the Code of Ethics’ Nepotism provisions, which are triggered here because the Petitioner’s daughter is a “person within [the Petitioner’s] family.” Regulation 5004(a)(2). Regulation 5004(b)(4) specifically addresses “Participation in Collective Bargaining/Employee Contracts.” It provides: (A) Negotiations. No person subject to the Code of Ethics shall participate in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his or her family or a household member. (B) Vote on Entire Contract. Notwithstanding the prohibition set forth in subsection 4(A), a person subject to the Code of Ethics may participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his or her family or household member is impacted by the contract or agreement as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. This blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the impact of decisions as to individual components of a contract can be difficult to predict. For that reason, an official’s participation in a contract issue that is seemingly unrelated to a family member can have a resulting impact on other areas of the contract that would directly affect the family member. The Commission has issued numerous advisory opinions in which it prohibited public officials from participating in contract negotiations that addressed or affected the employment of a person within their family. See e.g. A.O. 2011-17 (opining that a Tiverton Town Council member was prohibited by the Code of Ethics from participating in contract negotiations with IBPO Local 406, given that his father was a special officer for the Tiverton Police Department; however, he could participate in the Town Council’s decision to accept or reject a contract in its entirety once negotiated by the Town Council and Local 406, provided that his father was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of Local 406); A.O. 2011-14 (opining that a Foster-Glocester Regional School Committee member was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the Teachers’ Union, given that her husband was a member of the Teachers’ Union; however, she could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and Teachers’ Union, provided that her husband was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of the Teachers’ Union). See also A.O. 2009-32; A.O. 2009-12; A.O. 2008-44; A.O. 2007-40; A.O. 2007-32; A.O. 2007-31. In the present matter, the School Committee’s vote on whether or not to request arbitration with Teachers’ Union is clearly part of the ongoing and fluid negotiations process. The discussions relative to the arbitration decision will occur in executive session and will include substantive information on the status of the negotiations. The School Committee’s decision could not only result in arbitration but could also lead to further negotiations or a settlement. Furthermore, arbitration may not resolve the dispute because the arbitrator’s decision is only binding on non-monetary issues and the School Committee is free to reject the arbitrator’s decision as to monetary issues. For all of these reasons, we conclude that the School Committee’s discussion and vote regarding a request for arbitration is part of the negotiations process. Accordingly, the Petitioner is prohibited from participating in the School Committee’s negotiations with the Teachers’ Union for a new CBA, including the School Committee’s discussion and vote regarding whether to request arbitration with the Teachers’ Union. However, pursuant to Regulation 5004(b)(4)(B), the Petitioner is permitted to participate in the School Committee’s discussion and decision-making relative to approving or rejecting the contract in its entirety, once negotiated by others. The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as to not constitute a substantial conflict of interest in violation of the Code. Although the Petitioner is permitted to participate in the overall vote to approve or reject the contract, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. As such, the Petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact his daughter. Should those circumstances arise, the Petitioner must recuse from further participation pursuant to R.I. Gen. Laws § 36-14-6 or, if possible, seek further guidance from the Ethics Commission. Code Citations: § 36-14-6 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2011-17 A.O. 2011-14 A.O. 2009-32 A.O. 2009-12 A.O. 2008-44 A.O. 2007-40 A.O. 2007-32 A.O. 2007-31 Keywords: Family: Public Employment Nepotism This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. [1] The procedures for Certified School Teachers’ Arbitration are pursuant to R.I. Gen. Laws §§ 28-9.3-1 to -16.