Advisory Opinion No. 2009-12

Rhode Island Ethics Commission

Advisory Opinion No. 2009-12

Re: Laura A. Flanagan

QUESTION PRESENTED

The Petitioner, a member of the Coventry Town Council, a municipal elected position, whose spouse is a Lieutenant in the Coventry Police Department, a municipal employee position, requests an advisory opinion regarding: 1) whether she may participate in contract negotiations and the vote on a finally negotiated contract with  Local 306 of the International Brotherhood of Police Officers, and 2) what restrictions the Code of Ethics places upon her in regard to the Town Council’s approval of the Police Department budget.

RESPONSE

It is the opinion of the Ethics Commission that the Petitioner, a member of the Coventry Town Council, a municipal elected position, whose spouse is a Lieutenant in the Coventry Police Department:  1) is prohibited from participating in contract negotiations with Local 306 of the International Brotherhood of Police Officers,  but may vote on a finally negotiated contract, and 2) is prohibited from participating in discussion or decision-making relative to budgetary line-items that would address her spouse’s employment, but may participate in discussion or decision-making relative to approving or rejecting the entire police department budget as a whole.

The Petitioner is a recently elected member of the Coventry Town Council (“Town Council”).  She represents that part of her duties on the Town Council will include participating in the contract negotiations and vote on a finally negotiated contract with Local 306 of the International Brotherhood of Police Officers (“Local IBPO 306”), as well as participating in the discussion and vote surrounding the Coventry Police Department’s budget.  The Petitioner further represents that her husband is a Lieutenant in the Coventry Police Department (“police department”).  Additionally, the Petitioner states that at the time of her request, contract negotiations had commenced and that she had, to date, not participated in that process.  Thus, the Petitioner asks: 1) whether she may participate in contract negotiations and the vote on a finally negotiated contract with Local IBPO 306, and 2) what restrictions the Code of Ethics places upon her in regard to the Town Council’s approval of the Police Department budget, given that her spouse is a Lieutenant in the Coventry Police Department.

Commission Regulation 36-14-5004 specifically addresses the questions raised by the Petitioner.  Subsection (b)(4), in regard to participation in collective bargaining and employee contracts, reads in pertinent part:

(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.

Id.   Commission Regulation 36-14-5004’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the full 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. 

Accordingly, the Petitioner is prohibited from participating in any Town Council contract negotiations with Local IBPO 306, given that the Petitioner’s spouse is a union member that will be impacted by these negotiations.  However, pursuant to subsection (b)(4)(B), the Petitioner is permitted to participate in the Town Council’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.  See A.O. 2007-40 (opining that a member of the City of North Providence School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and both Local 1033 of the Laborers' International Union of North America, AFL-CIO and the North Providence Federation of Teachers, Local 920 given that the petitioner has family members who are members of these two unions, but could vote on the finally negotiated contracts); A.O. 2007-31 (opining that a member of the Johnston School Committee must recuse from contract negotiations with the teachers’ union, given that her child was a teacher and a member of the union, but could participate in the School Committee’s decision to accept or reject the labor contract as a whole).

Although the Petitioner is permitted to participate in the overall vote to approve or reject these contracts, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions.  The Petitioner must be vigilant in identifying such instances where general conversation begins to focus on individual aspects of the contracts that are likely to financially impact her family members.  In such circumstances, the Petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission.

In regard to the Petitioner’s question about the prohibitions placed upon her by the Code of Ethics in the Town Council’s discussion and vote on the Police Department’s budget, Commission Regulation 36-14-5004(b)(3), regarding participation in budgets, specifically addresses the question raised by the Petitioner.  It reads, in pertinent part:

(A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member.

(B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member 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.

(C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget 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.

Commission Regulation 36-14-5004(b)(3).  Pursuant to this provision, the Petitioner is prohibited from participating in any Town Council discussion or voting on line items in the Police Department budget.  However, the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting the entire budget as a whole.  The basis for allowing such participation is an assumption that that a vote on an overall budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code.  See A.O. 2007-30 (opining that a member of the East Providence School Committee was prohibited by the Code of Ethics from participating in any budgetary line item relative to bus monitors, given that he had a family member who was employed as a bus monitor, but that he may vote on the budget as a whole).

Although the Petitioner is permitted to participate in the overall vote to approve or reject the police department budget, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items.  The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on issues that are likely to financially impact her spouse.  In such circumstances, the Petitioner must recuse from further participation or, if possible, seek further guidance from the Ethics Commission.

Code Citations :

Commission Regulation 5004

Related Advisory Opinions :

2007-40

2007-31

2007-30

Keywords :

Contracts

Nepotism

Negotiations