Advisory Opinion No. 2003-14

Re: Anne-Marie Silveira

QUESTION PRESENTED

The petitioner, a Narragansett Town Councilor, a municipal elected position, requests an advisory opinion as to whether and to what extent she may participate in Town Council matters involving the Narragansett Police Department, given the fact that her son is a police officer within the department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Narragansett Town Councilor, a municipal elected position, may not participate in matters involving the Narragansett Police Department that directly impact the employment, compensation or other economic matters relative to her son.

The petitioner is a recently elected member of the Narragansett Town Council. She represents that her son is presently employed by the Town of Narragansett as a police officer. She states that the Town currently employs approximately 40 police officers. The petitioner is aware that she may not participate in any Town Council matter that involves her son specifically. She asks whether the Code of Ethics allows her participation in more general matters affecting the Police Department, such as the Police Department budget, collective bargaining and arbitration.

The Code of Ethics prohibits a public official 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 her duties in the public interest. R.I. Gen. Laws § 36-14-5(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. 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 as 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 could 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 Johnston School Committee could 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 could 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 could 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).

Here, the class exception set forth in Section 7(b) is not applicable. The petitioner's son is one of approximately 40 police officers in Narragansett, a number that is not sufficiently "significant" to allow for an exception to the Code's requirements. The facts raised in this request, therefore, are 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.

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 may participate in matters involving the Narragansett Police Department that directly impact the employment, compensation or other economic matters relative to her son. Such matters may include specific budgetary line items relating to the Police Department, and collective bargaining negotiations. Other matters before the Town Council may also require recusal, but without the benefit of more specific information as to such matters the Commission cannot offer a more specific opinion. Accordingly, the petitioner is advised to seek further advice from the Commission or to recuse out of an abundance of caution as specific matters come before the Town Council that may impact her son.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

98-166

98-162

98-32

97-75

97-65

Keywords:

Class exception

Family: financial benefit

Nepotism

Union/bargaining unit