Advisory Opinion No. 2014-1 Rhode Island Ethics Commission Advisory Opinion No. 2014-1 Approved: January 14, 2014 Re: Mark J. Wildenhain QUESTION PRESENTED: The Petitioner, a member of the Pawtucket City Council, a municipal elected position, requests an advisory opinion regarding the limitations the Code of Ethics places upon his participation in the City Council’s ratification of various collective bargaining agreements, given that he has four family members who are City employees and will be impacted by these agreements. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that while the Petitioner, a member of the Pawtucket City Council, a municipal elected position, is prohibited by the Code of Ethics from participating in negotiations relative to any collective bargaining agreements that address or affect the employment of his family members who are City employees, he is not prohibited from participating in the City Council’s review and ratification of such collective bargaining agreements, once they are negotiated by others. The Petitioner is a member of the Pawtucket City Council (“City Council”). He also serves on the City Council’s Finance Committee (“Finance Committee”).[1] The Petitioner represents that pursuant to § 2-310 of the Pawtucket City Charter: “All collective bargaining agreements which the city has negotiated with labor organizations representing city employees, including employees under the jurisdiction of the school committee, shall be presented to the council for approval.” He states that the City Council refers proposed collective bargaining agreements (“CBA”) to the Finance Committee for an initial review. He informs that the Finance Committee makes a recommendation to the full City Council to accept or reject each CBA. The Petitioner informs that he has four family members who are employed by different departments within the City of Pawtucket (“City”). He represents that he has had no involvement in the negotiation of any of the City’s CBAs. He further represents that City Council members do not participate in the negotiations for any CBAs within the City. Commission Regulation 36-14-5004 (“Regulation 5004”) is triggered when a person subject to the Code takes official action that will have an impact upon a member of their family. The Code of Ethics states that “Any person within his or her family” means: any person who is related to any public official or public employee, whether by blood, marriage or adoption, as any of the following: spouse, father, step-father, father-in-law, mother, step-mother, mother-in-law, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, grandfather, step-grandfather, grandfather-in-law, grandmother, step-grandmother, grandmother-in-law, grandson, step-grandson, grandson-in-law, granddaughter, step-granddaughter, granddaughter-in-law, uncle, step-uncle, uncle-in-law, aunt, step-aunt, aunt-in-law, niece, step-niece, niece-in-law, nephew, step-nephew, nephew-in-law, first cousin, step-first cousin and first-cousin-in-law. Regulation 5004(a)(2). Of particular relevance to the instant matter is Regulation 5004(b)(4), which specifically addresses “Participation in Collective Bargaining/Employee Contracts.” It provides: (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. This blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the 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. Although participation in negotiations is prohibited, public officials may participate in the decision to accept or reject a contract as a whole, once it is 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 not to constitute a substantial conflict of interest in violation of the Code. The Commission has issued numerous advisory opinions in which it has prohibited public officials from participating in contract negotiations that addressed or affected the employment of a person within their family. See e.g. A.O. 2013-44 (opining that a North Providence School Committee member was prohibited by the Code of Ethics from participating in the School Committee’s discussion and vote regarding whether to request arbitration for the contract negotiations with the Teachers’ Union, given that his daughter was a member of the Teachers’ Union and such a vote was part of the negotiations process); A.O. 2011-17 (opining that a Tiverton Town Council member was prohibited by the Code of Ethics from participating in contract negotiations with IBPO Local 406, given that his father was a special officer for the Tiverton Police Department; however, he could participate in the Town Council’s decision to accept or reject a contract in its entirety once negotiated by the Town Council and Local 406, provided that his father was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of Local 406). See also A.O. 2013-43; A.O. 2011-14; A.O. 2009-32; A.O. 2009-12; A.O. 2008-44; A.O. 2007-40; A.O. 2007-32; A.O. 2007-31. Here, the Petitioner asks if he can participate in the Finance Committee’s review and the City Council’s ratification of each of the CBAs that are relevant to his family members, as set forth below. The Petitioner’s Brother - School Department Employee The Petitioner represents that his brother, Matthew Wildenhain, is an electrician for the Pawtucket School Department (“School Department”) and is a member of Rhode Island Council 94, AFSCME, AFL-CIO, Local 1352 (“Local 1352”). He informs that Local 1352 is the bargaining unit for the School Department’s non-teaching positions. He states that the Pawtucket School Committee (“School Committee”) and Local 1352 have recently agreed upon the terms of a new CBA. He further states that this CBA has been referred to the Finance Committee for review and recommendation. He states that he has recused from any participation in this matter until he receives an advisory opinion from this Commission. The nepotism provisions are implicated here because the Petitioner’s brother is a person within the Petitioner’s family as that term is defined in Regulation 5004(a)(2). The Petitioner represents that the negotiations are complete and his roles on the City Council and its Finance Committee do not involve participating in contract negotiations. Furthermore, this CBA was already approved by the School Committee and is merely up for ratification by the City Council. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Finance Committee’s review and the City Council’s discussion and decision-making relative to the ratification of the CBA between Local 1352 and School Department. The Petitioner’s Sister – School Department Employee The Petitioner informs that his sister, Paula Wildenhain, is a teacher for the School Department and is also a member of the Pawtucket Teachers’ Alliance Local 930, American Federation of Teachers (“Teachers’ Union”). He informs that the School Committee and the Teachers’ Union are in the process of negotiating the terms of a successor CBA. He states that the City Council has no involvement in the negotiation of this CBA with the Teachers’ Union. After the School Committee approves the CBA, it will be sent to the City Council for approval. The Petitioner seeks guidance as to whether he can participate in the Finance Committee’s review and City Council’s ratification of a CBA, once negotiated and agreed to by the Teachers’ Union and the School Department. The Petitioner’s sister is a member of his family as that term is defined in the Code of Ethics. Based upon the facts represented by the Petitioner, he will have no role in the negotiation of this CBA between the Teachers’ Union and the School Department. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Finance Committee’s review and the City Council’s discussion and decision-making relative to the ratification of the CBA between the Teachers’ Union and School Department. The Petitioner’s Brother – Sanitation Division Employee The Petitioner states that his brother, Kevin Wildenhain, is an Equipment Operator for the City’s Sanitation Division and he is also a member of Rhode Island Council 94, AFSCME, AFL-CIO, Local 1012 (“Local 1012”). He informs that Local 1012’s bargaining unit general includes City laborers and non-supervisory employees. He states that the City and Local 1012 were in the process of negotiating the terms of a successor CBA, but they are presently at an impasse. He represents that the City Council has had no involvement in the negotiation of the terms of this CBA. He informs that these contracts are negotiated by the City’s Director of Administration with the assistance of the City Solicitor. Given the City Charter provision requiring City Council approval of all CBAs, the Petitioner seeks guidance as to whether he can participate in the Finance Committee’s review and City Council’s ratification of a CBA, once negotiated and agreed to by Local 1012 and the City. The Petitioner’s brother is a member of his family as that term is defined in the Code of Ethics. Based upon the facts represented by the Petitioner, he will have no role in the negotiation of this CBA between Local 1012 and the City. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Finance Committee’s review and the City Council’s discussion and decision-making relative to the ratification of the CBA between Local 1012 and the City. The Petitioner’s Cousin – Fire Department Employee The Petitioner represents that his first cousin, Keith Wildenhain, is a firefighter for the City’s Fire Department and is also a member of Pawtucket Fire Fighters Local 1261, IAFF (“Local 1261”). He informs that the City and local 1261 are in the process of negotiating the terms of a successor CBA. He represents that the City Council has no involvement in the negotiation of the terms of this contract. He informs that these contracts are negotiated by the City’s Director of Administration with the assistance of the City Solicitor. Given the City Charter provision requiring City Council approval of all CBAs, the Petitioner seeks guidance as to whether he can participate in the Finance Committee’s review and City Council’s ratification of a CBA, once negotiated and agreed to by Local 1261 and the City. The Petitioner’s first cousin is a member of his family as that term is defined in the Code of Ethics. Based upon the facts represented by the Petitioner, he will have no role in the negotiation of this CBA between Local 1261 and the City. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Finance Committee’s review and the City Council’s discussion and decision-making relative to the ratification of the CBA between Local 1261 and the City. Conclusion In the present matter, the Petitioner represents that the City Council and the Finance Committee have no involvement in the negotiating of CBAs for City employees. Therefore, he may participate in the Finance Committee’s review of fully negotiated CBAs and the City Council’s decision whether or not to ratify such CBAs. However, the Petitioner must be vigilant to identify instances where a general conversation begins to focus on individual aspects of the CBAs that are likely to financially impact any of his family members. Should those circumstances arise, the Petitioner must recuse from further participation for the duration of the discussion of the specific contractual provisions. The Petitioner may resume participation after such discussions have ceased and may participate in the vote to accept or reject the contract. If such discussions occur during executive session, upon recusal, the Petitioner is advised to leave the room until the discussions of such issues are over. A recusal statement must be completed in accordance with R.I. Gen. Laws § 36-14-6 and filed with the Ethics Commission. Code Citations: § 36-14-6 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2013-44 A.O. 2013-43 A.O. 2011-17 A.O. 2011-14 A.O. 2009-32 A.O. 2009-12 A.O. 2008-44 A.O. 2007-40 A.O. 2007-32 A.O. 2007-31 Keywords: Nepotism 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.