Advisory Opinion No. 2005-37 Re: Anthony J. Silva QUESTION PRESENTED: The petitioner, the Chief of the Cumberland Police Department, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics permits his participation in the collective bargaining process between the Town of Cumberland and the Cumberland Fraternal Order of Police, given that his appointing authority has recused from participating in the process. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chief of the Cumberland Police Department, a municipal appointed position, may participate in the collective bargaining process between the Town of Cumberland and the Cumberland Fraternal Order of Police, notwithstanding the fact that his appointing authority has recused from participating in the process. The petitioner is the Chief of the Cumberland Police Department. He represents that the contract between the Town of Cumberland and the Cumberland Fraternal Order of Police (FOP) has expired and negotiations on a new contract are imminent. Although normally the Mayor of the Town of Cumberland is responsible for negotiating this contract on behalf of the Town, this Commission recently advised the current Mayor that he is required to recuse from such negotiation given the existence of certain conflicts of interest. See A.O. 2005-28. The petitioner states that in light of the Mayor's recusal, the Town Council has appointed its President and two other Council members to act as a negotiating team on the police contract. According to the petitioner, during collective bargaining it is standard operating procedure for the Town's negotiator to seek and accept recommendations from the sitting Chief of Police. Indeed, the petitioner represents that the Council President has asked the petitioner for recommendations and guidance in this current round of negotiations. The petitioner wishes to offer such assistance, but asks whether he is permitted to do so given the fact that the Mayor, the petitioner's appointing authority, has officially recused from the matter. Under the Code of Ethics, a public official 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). An official has an interest in substantial conflict with his 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, his family member, his business associate, his employer or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). In A.O. 2005-28, we noted that ordinarily when a public official recuses, that official's subordinates are also disqualified from participating in decision-making since they might feel pressured to make decisions that the public official would have wanted had he been able to act but for his conflict of interest. Accordingly, we stated that upon the Cumberland Mayor's recusal from contract negotiations, "the Town must designate a person or entity not subordinate to the petitioner or subject to his jurisdiction and control to negotiate the police contract." These statements in A.O. 2005-28 were meant to convey that the Mayor could not designate one of his subordinates to take his place at the negotiating table. We did not intend to prohibit the new negotiating team comprised of Town Council members from seeking input or recommendations from the Chief of Police or other department heads. The critical fact here is that the petitioner's participation is sought not from his recused appointing authority, but from the non-conflicted negotiating team. Under these circumstances, and for the reasons discussed above, the Code of Ethics does not prohibit the petitioner from participating in the negotiation process between the Town and the FOP. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2005-28 2004-16 2000-5 98-166 98-162 Keywords: