Advisory Opinion No. 2005-26

Re:  Colleen A. McGrath

QUESTION PRESENTED:

The petitioner, a member of the Newport City Council, a municipal elected position, requests an advisory opinion as to whether she may participate in the negotiation and vote on the collective bargaining contracts between the City of Newport and the International Association of Firefighters, and between the City of Newport and the American Federation of State, County and Municipal Employees, Council 94, given that her father is a retired City of Newport firefighter and her uncle is an employee of the City of Newport.

RESPONSE:  

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Newport City Council, a municipal elected position, may participate in votes by the Newport City Council to accept or reject the collective bargaining contracts as a whole between the City of Newport and the International Association of Firefighters, and between the City of Newport and the American Federation of State, County and Municipal Employees, Council 94, provided that her father and her uncle are not affected by their respective contracts individually or to any greater extent than any other similarly situated member of their respective class.  The Commission also opines that the petitioner should recuse herself, in accordance with R.I. Gen. Laws § 36-14-6, from any other actions taken by the Newport City Council regarding the negotiation and vote on these contracts, including the provision of input on the negotiation of these contracts and votes on the individual components of these contracts.

The petitioner informs that she was elected to the Newport City Council in November 2004.  She represents that the Charter of the City of Newport mandates that all City contracts be approved by the City Council at an open meeting.  She states that City Council members may provide collective input regarding contract matters during the negotiation process.  She represents that the City Council will soon consider the collective bargaining contracts between the City of Newport and the International Association of Firefighters (IAFF), and between the City of Newport and the American Federation of State, County and Municipal Employees (AFSCME), Council 94.  She informs that she is not a member of the negotiating team regarding the details of these collective bargaining contract matters. 

The petitioner states that her father is a retired City of Newport firefighter and a member of the IAFF, a firefighters’ union.  She informs that her father receives benefits as a retiree under the City of Newport-IAFF contract.  The petitioner states that all of the firefighters in the City of Newport, except the Chief, belong to the IAFF.  She represents that there are approximately ninety-two (92) active and sixty-three (63) retired Newport firefighters that are members of the IAFF.   

She also informs that her uncle is a current employee of the City of Newport and a member of the AFSCME, Council 94.  She represents that her uncle derives benefits from the City of Newport’s collective bargaining agreement with AFSCME, Council 94.  She informs that approximately fifty-five (55) employees of Newport belong to the AFSCME, Council 94. 

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest.  R.I. Gen. Laws § 36-14-5(a).  An official has an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, her family member, her business associate, her employer or any business by which she is employed or which she represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001.  Furthermore, a public official may not use her public office or confidential information received through her office to obtain financial gain, other than that provided by law, for herself, her family member, her business associate, her employer or any business she represents.  R.I. Gen. Laws § 36-14-5(d). 

The Commission has applied section 7(b)’s “class exception” to similar situations.  See, e.g., A.O. 2004-16 (opining that a Newport City Councilor may participate in and vote on City Council matters involving the collective bargaining contracts of the Newport Police Department and the Newport Fire Department given that his uncles employed by the departments will be affected by the contracts to the same extent as the other firefighters and police officers); A.O. 98-166 (opining that a West Warwick Town Councilor whose daughter was employed by the Town and whose son was employed by the Police Department could participate in and vote on matters relating to the police and municipal employee contracts provided that the vote or negotiations did not affect his daughter or son individually); 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 spouse was not affected individually by the contract, except as a member of the entire class of teachers in the system).  Under section 7(b), a substantial conflict of interest pursuant to section 5(a) does not exist if a public official receives a financial benefit or detriment “as a member of a business, profession, occupation or group . . . to no greater extent than any other similarly situated member of the business, profession, occupation or group[.]”  R.I. Gen. Laws § 36-14-7(b). 

Here, the petitioner asks the Commission to consider two proposed classes.  The first class consists of all of the firefighters in City of Newport who are members of the IAFF, which is a total of approximately one hundred fifty-five (155) active and retired firefighters.  The second class consists of approximately fifty-five (55) employees of the City of Newport who are members of the AFSCME, Council 94.  The petitioner represents that her relatives will not be individually impacted by these respective contracts, except as a member of the entire class of municipal employees or firefighters in each respective union.  She informs that her relatives will not provide input on these contracts and that they are not involved in the negotiation of these contracts.  Given the petitioner’s representations, the Commission concludes that the class exception applies.

Nonetheless, the Commission deems it appropriate for public officials to limit their involvement in matters regarding the negotiation of contracts that may impact their family members.  The Commission understands that the progression and impact of contract negotiations can be unpredictable and that an official’s participation in such matters can unexpectedly lead to a violation of the Code of Ethics.  Accordingly, the Commission concludes that public officials in such situations should simply restrict their involvement in such matters at the outset.

The Commission therefore opines that the petitioner may participate in the Newport City Council’s consideration of the collective bargaining contracts between the City of Newport and the International Association of Firefighters, and the City of Newport and the American Federation of State, County and Municipal Employees, Council 94, to the extent that the Newport City Council votes to accept or reject each contract as a whole and provided that her father and her uncle are not affected by their respective contracts individually or to any greater extent than any other similarly situated member of their respective class.  The Commission encourages the petitioner to exercise caution when participating in these matters and to recuse herself, in accordance with R.I. Gen. Laws § 36-14-6, if any other matters come before the Newport City Council regarding the negotiation and vote on these contracts (including the provision of any input on the negotiation of these contracts and votes on the individual components of these contracts), and if these contracts impact her relatives individually or as members of a smaller class.  

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Regulation 36-14-7001

Related Advisory Opinions:

2004-16

98-166

98-162

Keywords:

Class Exception

Family: Public employment