Advisory Opinion No. 2021-4 Rhode Island Ethics Commission Advisory Opinion No. 2021-4 Approved: January 12, 2021 Re: Timothy Walsh QUESTION PRESENTED: The Petitioner, the Chief of the Lime Rock Fire Department, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing to advise the Chairperson of the Board of Commissioners for the Lime Rock Fire Department concerning the negotiation of a collective bargaining agreement addressing the employment of the firefighters within the Fire Department, given that a firefighter within the Fire Department became the Petitioner’s son-in-law in November of 2020. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chief of the Lime Rock Fire Department, a municipal employee position, is not prohibited by the Code of Ethics from continuing to advise the Chairperson of the Board of Commissioners for the Lime Rock Fire Department concerning the negotiation of a collective bargaining agreement addressing the employment of firefighters within the Fire Department, notwithstanding that a firefighter within the Fire Department became the Petitioner’s son-in-law in November of 2020, because it is not reasonably foreseeable that the Petitioner’s son-in-law would be financially impacted by the Petitioner’s official activity, nor does the Petitioner’s advice to said Chairperson rise to the level of participation in negotiations relative to a collective bargaining agreement affecting the employment, compensation or benefits of the Petitioner’s son-in-law. The Petitioner is the Chief of the Lime Rock Fire Department (“Fire Department”), having been hired in 2015 by its Board of Commissioners (“Board”). He cites among his duties as Chief: responsibility for the safety of the members of the Fire Department and the taxpayers of the Lime Rock Fire District, and the day-to-day operations of the Fire Department. The Petitioner states that the duties of the Board, of which he is not a member, include the exercise of exclusive authority over the establishment of all terms and conditions within the collective bargaining agreement (“CBA”) which addresses the employment of the Fire Department’s firefighters (“firefighters”). He explains that members of the Board have been negotiating a new CBA since 2018 that is now near completion.[1] The Petitioner further explains that, sometime before the end of April of 2021, members of the Board are expected to participate in a decision to accept or reject the CBA as a whole. The Petitioner represents that, as Chief of the Fire Department, he is not subject to the provisions of the CBA. He explains that, in anticipation of participation by the Board’s Chairperson (“Chair”) in negotiating the CBA, the Petitioner had been acting as a consultant to the Chair by identifying certain day-to-day considerations and concerns of the Fire Department, of which the Chair is neither a member nor a firefighter, by providing information about which the Chair might not otherwise have knowledge or access. The Petitioner offers the following examples of matters on which he advises the Chair concerning the firefighters: shift length; necessary training; the identification of apparatus chores; and the color and style of uniforms. The Petitioner specifies that his advice to the Chair is limited to matters concerning Fire Department operations only, and excludes Fire Department finances, be they related to firefighter compensation or otherwise. The Petitioner states that all provisions of the CBA about which he has advised the Chair will apply to all firefighters the same way. He further states that he has acted as a consultant only and emphasizes that he does not attend the negotiation sessions, is not actively involved in the negotiations, and has no voting authority over the CBA which will eventually be presented to members of the Board for consideration. The Petitioner states that he has not consulted with the Chair regarding the CBA since before November of 2020. The Petitioner informs that, in November of 2020, one of the firefighters within the Fire Department married the Petitioner’s daughter and became the Petitioner’s son-in-law. It is in the context of these facts that the Petitioner seeks advice from the Ethics Commission regarding whether he may resume consulting with the Chair in advance of the Chair continuing the negotiation process for the CBA.[2] A person subject to the Code of Ethics 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest is not necessarily certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). A public official also may not use his office for pecuniary gain, other than as provided by law, for himself, any person within his family, his employer, his business associate, or any business that he represents. Section 36-14-5(d). Further, the Code of Ethics provides that no public official shall participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family will derive a direct monetary gain or suffer a direct monetary loss as a result. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities - Nepotism (36-14-5004) (“Regulation 1.3.1”). The definition of “any person within [a public official’s] family” specifically includes “son-in-law.” Regulation 1.3.1(A)(2). Finally, no person subject to the Code of Ethics is permitted to 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 family. Regulation 1.3.1(B)(4)(a). In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must ascertain whether the Petitioner’s consultations with the Chair constitute participation in collective bargaining negotiations as prohibited by Regulation 1.3.1(B)(4)(a), and whether such consultations would result in a direct financial impact upon his son-in-law as prohibited by Regulation 1.3.1(B)(1). If such a direct financial impact, be it positive or negative, is not reasonably foreseeable, then the Petitioner is not required by the Code of Ethics to recuse from further advising the Chair concerning the CBA negotiations. See A.O. 2019-25 (opining that a member of the Cranston City Council could participate in City Council discussions and voting relative to a proposed ordinance that would ban the use of plastic bags by Cranston business establishments, notwithstanding that the petitioner owned and operated a restaurant in Cranston, given the petitioner’s representations that the proposed ordinance’s ban on plastic bags would have no impact on his current operations); A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could participate in the Town Council’s discussions and voting relative to a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon). Here, the Petitioner represents that the nature of his consultations with the Chair is limited to providing information relative to Fire Department operations, and specifically excludes financial matters such as firefighter compensation or benefits. Furthermore, the Petitioner has stated that he does not attend the CBA negotiation sessions, is not actively involved in those negotiations, and has no voting authority over the CBA which will eventually be presented to members of the Board for consideration. The Petitioner’s advice to the Chair does not rise to the level of participation in negotiations relative to the CBA and, therefore, does not trigger the provisions of Regulation 1.3.1(b)(4)(a). Nor is it reasonably foreseeable that such consultations will result in a direct financial impact upon the Petitioner’s son-in-law as prohibited by Regulation 1.3.1(b)(1). Accordingly, based upon the Petitioner’s representations, the application of the relevant provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from continuing to advise the Board of Commissioners for the Lime Rock Fire Department concerning the negotiation of a collective bargaining agreement addressing the employment of firefighters within the Fire Department. 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. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2019-25 A.O. 2012-2 Keywords: Collective Bargaining Agreement [1] The Petitioner informs that the firefighters are currently operating under a CBA approved in 2015 that was set to expire in 2018. [2] In recognition of his responsibility to seek approval of an alternate chain of command following his daughter’s marriage to a firefighter within the Fire Department for which the Petitioner serves as Chief, the Petitioner has requested a second advisory opinion from the Ethics Commission. That request is also on today’s agenda.