Advisory Opinion No. 2011-11

QUESTION PRESENTED

The Petitioner, a member of the Glocester Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate in and vote on the Town Council’s consideration of a proposed ordinance regulating the use of outdoor wood boilers, given that he owns and operates such a boiler on his property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Glocester Town Council, a municipal elected position, may not participate in and vote on the Town Council’s consideration of a proposed ordinance regulating the use of outdoor wood boilers, given that he owns and operates such a boiler on his property.

The Petitioner is a member of the Glocester Town Council (“Town Council”). He represents that the Town Council is considering an ordinance regulating the use of Outdoor Hydronic Heaters/Outdoor Wood Boilers, (hereinafter “OWB”). He informs that he installed an OWB on his property approximately six (6) years ago for the purpose of heating his home. He states that presently no ordinance exists regulating OWBs in the Town of Glocester (“Town”).

The Petitioner represents that the Town Council began the task of creating a new ordinance by reviewing ordinances from other cities and towns and relevant state and federal environmental law requirements. He further represents that the Town Solicitor drafted a proposed ordinance for the Town Council’s review and subsequent public hearings. He also represents that the Town Council passed a resolution placing a moratorium on the installation of new OWBs until the new ordinance takes effect. The Petitioner informs that the proposed ordinance “seeks to regulate the location, use, construction and operation of outdoor furnaces so that they do not become a public nuisance.” (OWB Ordinance.) He further informs that this proposed ordinance not only regulates existing and future OWBs, but it also gives neighbors a right to complain of a nuisance resulting from an OWB, thereby triggering official review by the Town’s Building/Zoning Official.

The Petitioner estimates that forty (40) to fifty (50) residents in the Town currently own and operate OWBs. He informs that the ordinance, as currently drafted, would have the following financial impacts on him as an existing owner of an OWB: 1) require him to obtain a building permit within four (4) months of the effective date of the ordinance, at a cost of approximately $150 to $170 for a mechanical and electrical inspection; 2) require him to burn only the permitted fuels listed in the ordinance; 3) require him to comply with state and federal regulations, including but not limited to the USEPA and RIDEM, all other provisions of the building code, electrical code, and applicable subdivision and zoning regulations; and 4) prohibit him from using, maintaining, or operating his OWB in such a way as to create a nuisance or interfere with the health, safety and welfare of the Town or any person.

As such, the Petitioner seeks an advisory opinion as to whether he may participate in and vote on the Town Council’s consideration of the proposed ordinance regulating OWBs.

A person subject to the Code of Ethics, such as the Petitioner, 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). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a).

However, section 36-14-7(b) of the Code, sometimes referred to as the “class exception,” states that a public official will not have an interest which is in substantial conflict with his official duties 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.”

When determining whether any particular circumstance supports and justifies the application of the class exception, the Commission will consider the totality of the circumstances. A.O. 2009-42. Among the important factors considered are: 1) the description of the class; 2) the size of the class; 3) the function or official action being contemplated by the public official; and 4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. Id.

Based on the Petitioner’s representations, it is clear that the he will be financially impacted by this proposed ordinance incurring, at a minimum, the cost of obtaining a building permit. However, we must next consider whether the class exception applies, looking to the totality of the circumstances in this matter. Here, the Petitioner is similarly situated to a subclass of people within the Town, comprised of approximately forty (40) to fifty (50) owners and operators of existing OWBs. As to his official action, the Petitioner would be participating in the discussions, public hearings, and vote on a proposed ordinance that would have a direct financial impact on him. Moreover, it is reasonably foreseeable that the restrictions in the proposed ordinance could change before the final version is proposed for adoption, potentially increasing or decreasing the direct financial impact on the Petitioner before the ordinance is even submitted for a final vote.

After considering the totality of the circumstances, it is the opinion of the Ethics Commission that the class exception, as set forth in section 7(b), does not apply. Here, the Petitioner will incur a direct financial impact as a result of this proposed ordinance. Furthermore, because the ordinance is still subject to revision by the Town Council, it is impossible at this time to precisely quantify the nature and extent of the ordinances financial impact on current OWB owners. Finally, the estimated number of residents with existing OWBs is not sufficiently significant as to outweigh our concerns with the actual and potential financial impacts. See e.g. A.O. 2006-12 (opining that a member of the Narragansett School Committee, may not participate in the discussions and votes regarding whether to privatize the transportation services provided by the Transportation Department of the Narragansett School System, given that her brother works for the Narragansett School System’s Transportation Department, which only has 36 employees). Accordingly, it is the opinion of the Ethics Commission that the Petitioner may not participate in and vote on the Town Council’s consideration of a proposed ordinance regulating the use of OWBs, given the fact that he owns and operates such a boiler on his property. The Petitioner must recuse from such matters in accordance with section 36-14-6.

Code Citations:

§ 36-14-5(a)

§ 36-14-6

§ 36-14-7(a)

§ 36-14-7(b)

Related Advisory Opinions:

A.O. 2009-42

A.O. 2006-12

Keywords:

Class Exception

Recusal