Advisory Opinion No. 2015-21 Rhode Island Ethics Commission Advisory Opinion No. 2015-21 Approved: April 28, 2015 Re: Erin Dube QUESTION PRESENTED: The Petitioner, a member of the Pawtucket School Committee, a municipal elected position, requests an advisory opinion regarding how the Code of Ethics restricts her participation in certain School Committee matters, given that her sister-in-law is a teacher at one of the public schools in Pawtucket and is also a member of the Pawtucket Teachers’ Union. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Pawtucket School Committee, a municipal elected position, is generally prohibited by the Code of Ethics from participating in any School Committee matters in which her sister-in-law is a party or participant, or in which she will be financially impacted. The Petitioner is also prohibited from participating in contract negotiations with the Teachers’ Union, given her sister-in-law’s membership in that union. Finally, the Petitioner is prohibited from participating in any budget line items that address or affect the employment, compensation or benefits of her sister-in-law. However, the Petitioner may participate in the School Committee’s discussion and decision making relative to approving or rejecting the entire budget or the Teachers’ Union contract as a whole. The Petitioner represents that she is a member of the Pawtucket School Committee (“School Committee”) having been elected in November 2014 to her first term. She states that her sister-in-law is one of two dance teachers in the Pawtucket School District (“School District”). She further states that her sister-in-law teaches at Jenks Junior High and is a member of the Pawtucket Teachers’ Alliance Local 930, American Federation of Teachers (“Teachers’ Union”). Given her family member’s employment within the School District and membership in the Teachers’ Union, the Petitioner seeks general guidance as to the prohibitions within the Code of Ethics that may restrict her participation in certain School Committee matters. Although we do not usually issue advisory opinions for such general questions, given the frequency of municipal school committee members having conflicts of interest involving family members who are employees of their school districts, we will set forth some general guidance for the Petitioner to follow. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. Commission Regulation 36-14-5004 (“Regulation 5004”), which sets forth the Nepotism prohibitions, restricts the Petitioner’s participation in School Committee matters that involve or impact a “household member” or “any person within . . . her family.” Regulation 5004(a)(1) & (2). In this case, the Petitioner’s sister-in-law is a “person within . . . her family,” as that term is defined in Regulation 5004(a)(2). The general nepotism prohibitions are set forth in Regulation 5004(b)(1), which provides: No person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family . . . is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. In addition, more specific prohibitions related to Advocacy/Supervision Regarding Family/Household Members are set forth in Regulation 5004(b)(2), which provides: (A) No person subject to the Code of Ethics shall participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family or a household member, in the state or municipal agency in which the official or employee is serving or over which he or she exercises fiscal or jurisdictional control, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion. (B) No person subject to the Code of Ethics shall delegate to a subordinate any tasks relating to the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family or household members, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion. Thus, in the event that the Petitioner’s sister-in-law is, as an individual, a party to or participant in a matter before the School Committee or will be directly financially impacted or obtain an employment advantage by the School Committee’s decision making, the Petitioner is required to recuse in accordance with R.I. Gen. Laws § 36-14-6. See, e.g., A.O. 2013-8 (opining that a Bristol Town Council memberwas prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position); A.O. 2009-1 (opining that a Scituate Town Council member was prohibited by the Code of Ethics from participating in Town Council matters involving S & C Collins Bus Company, Inc. (“Collins Bus”), one of the three companies that provided school bussing services to the Scituate School Department, given that Collins Bus was owned by his mother and he was an employee and officer of Collins Bus). Regulation 5004 also addresses a public official’s participation in budgets and contract negotiations that could financially impact or involve the public official’s family members. Regulation 5004(b)(3), entitled “Participation in Budgets,” provides: (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. For example, in Advisory Opinion 2010-35, the Commission opined, inter alia, that a Pawtucket School Committee member, whose brother and sister-in-law were teachers in the School District, was prohibited by the Code of Ethics form participating in any School Committee discussion or voting on line items in the School Department budget that would address or affect the employment, compensation or benefits of his brother and sister-in-law. However, the Petitioner could participate in the School Committee’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 a vote on the entire budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code of Ethics. See also A.O. 2007-30 (opining that an East Providence School Committee member was prohibited by the Code of Ethics from participating in any budgetary line items relative to bus monitors, given that he had a family member who was employed as a bus monitor, but could vote to approve or reject the budget as a whole). In the present matter, the Petitioner is prohibited from participating in the School Committee’s discussions and decision making relating to budget line items that would address or affect the employment, compensation or benefits of her sister-in-law, including line items for the Dance Department, given that there are only two dance teachers in the School District. However, the Petitioner may participate in the School Committee’s vote to approve or reject the entire budget as a whole. Finally, the Code of Ethics’ prohibitions for the most common conflicts encountered by School Committee members who have family members that are members of the Teachers’ Union are set forth in Regulation 5004(b)(4), “Participation in Collective Bargaining/Employee Contracts,” which 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. For example, in Advisory Opinion 2011-14, the Commission opined that a member of the Foster-Glocester Regional School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the Foster-Glocester Teachers’ Union, given that her husband was a teacher in the Foster-Glocester Regional School District and a member of the Foster-Glocester Teachers’ Union. However, the petitioner could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and Foster-Glocester Teachers’ Union, provided that her husband 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 the Foster-Glocester Teachers’ Union. 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 is part of the negotiations process). See also A.O. 2014-1; A.O. 2013-43; A.O. 2010-35; A.O. 2009-32; A.O. 2007-40. Here, the Petitioner is prohibited by Regulation 5004(b)(4)(A) from participating in contract negotiations with the Teachers’ Union because her sister-in-law is a member of the Teachers’ Union. However, pursuant to Regulation 5004(b)(4)(B), the Petitioner may participate in the School Committee’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 of Ethics. Although the Petitioner is permitted to participate in the overall vote to approve or reject the contract, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific contractual provisions. As such, the Petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact her sister-in-law. Should those circumstances arise, the Petitioner must recuse from further participation, pursuant to § 36-14-6, or seek further guidance from the Ethics Commission. In conclusion, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in any School Committee matters in which her sister-in-law is a party or participant, or in which she will be financially impacted. The Petitioner is also prohibited from participating in contract negotiations with the Teachers Union, given her sister-in-law’s membership in that union. Finally, the Petitioner is prohibited from participating in any budget line items that address or effect the employment, compensation or benefits of her sister-in-law. However, the Petitioner may participate in the School Committee’s discussion and decision making relative to approving or rejecting the entire budget or the Teachers’ Union contract as a whole. Notice of recusal shall be filed with the Ethics Commission in accordance with § 36-14-6. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. 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. Code Citations: § 36-14-6 Commission Regulation 36-14-5004 Related Advisory Opinions: G.C.A. 2009-1 A.O. 2014-1 A.O. 2013-44 A.O. 2013-43 A.O. 2013-8 A.O. 2011-14 A.O. 2010-35 A.O. 2009-32 A.O. 2009-1 A.O. 2007-40 A.O. 2007-30 Keywords: Contracts Family: Public Employment Nepotism Recusal Unions/Bargaining Unit