Advisory Opinion No. 2012-17 Advisory Opinion No. 2012-17 Re: Kenneth Parrilla QUESTION PRESENTED: The Petitioner, a member of the Westerly Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s consideration of a resolution to fund a sewer expansion to the Misquamicut Beach area, given that his mother-in-law’s property is included in the current sewer expansion plans. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in the Town Council’s consideration of the Misquamicut Beach area sewer expansion, given that his mother-in-law’s property is included in the current sewer expansion plans. The Petitioner is a member of the Westerly Town Council (“Town Council”). He represents that the Westerly Town Manager has proposed a resolution to fund a sewer expansion to the Misquamicut Beach area, given the area’s close proximity to coastal water features and the mandates of the Rhode Island Cesspool Act of 2007[1] (“Cesspool Act”) (R.I. Gen. Laws § 23-19.15-1 to -11). He states that, at present, 770 homes and 33 businesses will be affected by this proposed sewer expansion. He advises that individual sewer assessments for property owners will be based upon projected utilization of the system, with larger users paying larger assessments. He informs that the approximately 800 property owners included in the current expansion plans can be divided into two groups: 1) properties located in the Misquamicut Fire District, south of Shore Road, close to coastal features and subject to the mandates of the Cesspool Act; and 2) approximately 70 residential properties located in the Westerly Fire District, on Winnapaug Road north of Shore Road, that will be required to connect to the sewer system only if the main sewer line linking Misquamicut to the existing public sewer system will be installed down their street; however, these properties are not otherwise subject to the mandates of the Cesspool Act. The Petitioner informs that the sewer expansion plans have not been finalized and that the Town Council continues to deliberate the issues, including whether or not to run the main sewer line down Winnapaug Road. At this point there appear to be three possible resolutions: 1) the sewer expansion plans are not approved and there is no impact upon the residents of Winnapaug Road, north of Shore Road, because those properties are not subject to the Cesspool Act; 2) the sewer expansion plans are approved, connecting the Misquamicut Beach area to the existing public sewer system via Winnapaug Road and all residents of Winnapaug Road are required to connect to the sewer system; or 3) the sewer expansion plans are approved, connecting the Misquamicut Beach area to the existing public sewer system at a different location, resulting in no impact upon the residents of Winnapaug Road, north of Shore Road. The Petitioner informs that his mother-in-law owns property located in the Westerly Fire District. He states that this property is his mother-in-law’s primary residence, which is located on Winnapaug Road north of Shore Road. At this time, under the current plans, he represents that his mother-in-law’s property would be affected by the sewer expansion installation construction and will be required to connect to the public sewer even though she does not reside in the Misquamicut area. He states that his mother-in-law is elderly, on a fixed income, and is among the objectors to this sewer expansion. He also informs that his mother-in-law’s property is not subject to the Cesspool Act and she would otherwise be allowed to maintain her existing septic system in the event that the main sewer line is not installed down her street. Cognizant of the Code of Ethics, the Petitioner informs that he has been recusing himself from participation in any Town Council matters related to the Misquamicut Beach area sewer expansion. The Petitioner now seeks guidance as to whether he is required to recuse from the Town Council’s consideration of the Misquamicut Beach area sewer expansion, given that his mother-in-law’s property is included in the current sewer expansion plans. 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, for example, 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). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d). The term "family" is defined as persons related by blood, adoption or marriage, and expressly includes “mother-in-law.” Section 36-14-2(1). However, section 36-14-7(b) of the Code, 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, any person within his family, any business associate, or any business by which he is employed or which he represents “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. 2011-6. 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. In the present matter, the official action contemplated by the Petitioner would involve participating in the Town Council’s consideration of whether or not the main sewer line will run down Winnapaug Road, directly affecting whether the sewer expansion would include his mother-in-law’s property. The current variability in the sewer expansion plans creates a subclass of approximately 70 properties, including his mother-in-law’s, on Winnapaug Road north of Shore Road. The approximately 70 property subclass will only be required to connect to the public sewer system if the main sewer line is installed down Winnapaug Road. If the sewer expansion is not approved or the main line is installed elsewhere, the subclass will not be required to change their current septic systems or connect to the public sewer system. This is a substantial impact on a small number of properties that could either result in the subclass maintaining the status quo or incurring the long term cost of being required to connect to the public sewer system. See A.O. 2008-63 (refusing to apply the class exception and opining that a Narragansett Town Council member was prohibited from voting on an amendment to the Zoning Ordinance, given that he owned 2 of the approximately 70 properties that could be impacted by the proposed zoning amendment); A.O. 2007-41 (finding that the class exception was inapplicable and opining that a member of the North Providence Town Council was prohibited from voting on a zoning application for a property that abutted the condominium development in which he owned 1 of approximately 50 properties and also held an equal undivided interest in all the commonly owned property contained therein). For all of these reasons, we conclude that the class exception is inapplicable at this time. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in the Town Council’s consideration of a resolution to fund a sewer expansion to the Misquamicut Beach area, given that the Town Council’s deliberations and vote directly impact whether his mother-in-law’s property is included in the sewer expansion plans. As such, the Petitioner is required to recuse from participating in the Town Council’s consideration and vote on the Misquamicut Beach area sewer expansion. Notice of recusal must be filed in accordance with § 36-14-6. Additionally, at present, the Commission lacks sufficient facts to consider whether the Petitioner can participate in the Town Council’s consideration of the sewer expansion when the plans are finalized. The Commission applies the provisions of the Code of Ethics to the specific factual circumstances presented and it cannot opine on hypothetical situations. Accordingly, the Petitioner is encouraged to seek further advice from the Commission concerning his ability to participate in Town Council matters involving the Misquamicut Beach area sewer expansion in the event the plans are finalized such that the class of properties included in the expansion can be clearly defined. Code Citations: § 36-14-2(1) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2012-13 A.O. 2008-63 A.O. 2007-41 Keywords: Class Exception Family: Property Interest [1] The Cesspool Act requires all cesspools located within 200 feet of coastal features, public wells or drinking water to be replaced by a Department of Environmental Management (“DEM”) approved individual sewage disposal system (“ISDS”) or abandoned with the property being connected to a public sewer system.