Advisory Opinion 2018-19 Rhode Island Ethics Commission Advisory Opinion No. 2018-19 Approved: March 15, 2018 Re: Christopher Willi QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in Town Council discussions and voting relative to amending the Old Harbor Dock Policy and the Harbor Management Plan, given his private employment and the fact that he has a private mooring in New Harbor and is on the waiting list for slips in Old Harbor. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham Town Council, a municipal elected position, is not prohibited from participating in Town Council discussions and voting relative to amending the Old Harbor Dock Policy and the Harbor Management Plan, provided that he and his business associates are impacted by any proposed amendments to the same extent as other marine businesses, mooring and slip owners, and persons on the Town’s mooring and slip waiting lists. The Petitioner is a member of the Town Council for the Town of New Shoreham, also known as Block Island (“the Town”). In his private capacity, he is self-employed as the owner of Block Island Fishworks, a fishing charter business, retail store and rental business. The Petitioner states that he also provides mooring service work as an independent contractor for AH Edwards Marine (“AH Edwards”), a Block Island business engaged in mooring sales and service. The Petitioner represents that the Town regulates and licenses a limited number of private moorings and slips to residents and businesses, and maintains waiting lists of persons interested in obtaining moorings and slips. The Petitioner currently has a private mooring in New Harbor, and states that there are 390 such private moorings and approximately 400 people on the Town’s waiting list for a mooring. The Petitioner states that he is also currently on different waiting lists for both a charter slip and a commercial fishing slip at the Old Harbor Dock. He states that he has been on these Town waiting lists for approximately seven years, that there are 10-12 persons currently on each list, and that new slips do not become available very often. For example, he estimates that a new charter slip has opened up only four times in the last 25 years. The Town has enacted an Old Harbor Dock Policy (“Dock Policy”), which sets forth rules for governing and the proper use and care of the docks in Old Harbor. The Petitioner notes that the current Dock Policy was written in 2006 with his assistance as the Town’s then-Harbor Master. The Town also has a Harbor Management Plan which encompasses all of the Town’s harbor ordinances and management policies. The Petitioner states that both the Dock Policy and the Harbor Management Plan are going to come before the Town Council for review, discussion and possible amendment, and that such amendments may address moorings and slips. The Petitioner wishes to participate in such matters relating to the Dock Policy and Harbor Management Plan, but requests guidance from the Ethics Commission as to whether the Code of Ethics permits such participation given his private employment and the fact that he has a private mooring in New Harbor and is on the waiting lists for slips on the Old Harbor Dock. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, a public official must recuse himself from any matter in which his business associate appears or presents evidence or arguments before the municipal agency of which he is a member or by which he is employed. Commission Regulation 36-14-5002(a)(2). A “business associate” is defined as an individual or business entity joined together with another person to achieve a common financial objective. Section 36-14-2(3) & (7). Section 36-14-7(b) of the Code, referred to as the "class exception," states that a public official will not have conflict of interest requiring recusal if any benefit or detriment accrues to him “as a member of a business, profession occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater or lesser extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” The Ethics Commission considered issues similar to those raised here in Advisory Opinion 2007-53. There, the Chairperson of the Newport Waterfront Commission (“the Waterfront Commission”), asked whether he could participate in discussions and voting on a recommendation to the Newport City Council on a mooring fee increase, given that he leased a commercial mooring from the City, and had been on the City’s waiting list for a private mooring for approximately five years. Initially, although the petitioner would be financially impacted by the increased mooring fee, the Commission opined that the class exception applied to permit his participation because he was one of approximately 750 persons who leased moorings and all such lessees would be impacted in the same way. Next, the Ethics Commission stated that his status as a person on the waiting list for a private mooring did not disqualify him from participating in the Town Council’s discussion and vote, because any potential financial impact on waiting list members was too hypothetical and remote to be “reasonably foreseeable.” In the instant case, the Petitioner is one of 390 people who have moorings in New Harbor, and is one of approximately 10-12 persons who are on the waiting lists for charter and commercial fishing slips at the Old Harbor Dock. What is not known, at this time, is the wording and intent of any proposed changes to the Town’s Dock Policy and Harbor Management Plan, and the impact of such amendments on the Petitioner and others with moorings or on waiting lists. To the extent that any such proposed amendment would treat all mooring owners, or all persons on slip wait lists, equally, then it is likely that the class exception would permit the Petitioner’s participation. For example, as in A.O. 2007-53, a decision to raise the fee for a slip or mooring would impact all owners the same and would likely fall within the class exception. However, if any amendment is proposed that would impact the Petitioner differently than other mooring owners or persons on wait lists, or would financially impact his business or that of his business associate, AH Edwards, differently than other similarly situated businesses, then he will be required to recuse from all discussions and voting relative to such amendment. For example, an amendment that moves him up on a waiting list or that makes it likely that he will be able to obtain a slip faster than under the current process may well require the Petitioner’s recusal. As to such amendments, or to resolve any doubt as to the application of the Code of Ethics, the Petitioner should seek further guidance from the Ethics Commission. 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: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2007-53 Keywords: Business Associate Class Exception