Advisory Opinion No. 2012-2 Advisory Opinion No. 2012-2 Re: Daniel W. Patterson QUESTION PRESENTED The Petitioner, a member of the Exeter Town Council, a municipal elected position, who in his private capacity is a licensed firearms dealer, requests an advisory opinion regarding whether he may participate in the Town Council’s discussion and vote on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter Town Council, a municipal elected position, who in his private capacity is a licensed firearms dealer, may participate in the Town Council’s discussion and vote on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons. The Petitioner is a member of the Exeter Town Council (“Town Council”), having been elected in November 2010. In his private capacity, he is a licensed firearms dealer in Exeter (“Town”), and is also employed in the building, excavation, and explosives trade. He informs that in March of 2011, the Town Council received a copy of a resolution from the Town of Burrillville asking the General Assembly to amend R.I. Gen. Laws § 11-47-11[1] in order to remove the state mandate that cities and towns must issue concealed weapons permits to residents meeting certain criteria.[2] Until that time, the Petitioner represents that the Town of Exeter was unaware of the requirements of § 11-47-11 and was not in the practice of issuing concealed weapons permits. The Petitioner states that the Burrillville resolution prompted the Town Council to develop a procedure in order to comply with § 11-47-11. Beginning in May of 2011, the Petitioner represents that he worked with the Town Solicitor to draft a resolution and the necessary instructions and application forms for issuing concealed weapons permits. He advises that this process was complicated by the fact that the Town is the only town in Rhode Island that does not have its own police department, which is generally the licensing authority contemplated by the statute. He informs, however, that the General Assembly anticipated this situation and provided that “‘licensing authorities’ . . . in towns where there is no chief of police or superintendent of police, [] means the town clerk who may issue licenses upon the recommendation of the town sergeant, and it also means any other person or body duly authorized by the city or town charter or by state law.” Section 11-47-2(5). The Petitioner states that on August 1, 2011, the Town Council considered a Resolution (“August Resolution”) regarding a licensing process for concealed weapons permits. The August Resolution enabled the Town Clerk to issue permits and included an application and instructions. The Petitioner represents that state law requires the Town to issue such permits to residents meeting certain criteria. He advises that the Town Council discussed and unanimously voted to approve the August Resolution on August 1, 2011. However, the minutes of the August 1, 2011 meeting reveal concerns regarding the appropriateness of the Town Clerk’s issuance of these permits in the absence of a police department. Subsequently, the Petitioner advises that continuing concerns over the Town Clerk’s inability to perform background checks, in the absence of a police department, resulted in another resolution coming before the Town Council at the January 3, 2012 meeting. The Town Council President read the “Resolution Urging the Passage of Legislation Relating to Gun Permitting in the Town of Exeter” (“January Resolution”) into the record. The January Resolution asks the General Assembly to amend  11-47-11 to require, only in Exeter, that permitting be performed by a duly-authorized state law enforcement official or agency, given the Town’s lack of a police department. Although he represents that the Town’s ability to issue concealed weapons permits has no financial impact on his business as a fire arms dealer, he informs that a question was raised as to whether it was a conflict of interest for him to vote on the January Resolution. Therefore, he states that no vote was taken on the January Resolution and it was continued to the next meeting in order for him to seek an advisory opinion. Based upon the above representations, the Petitioner seeks guidance as to whether he may participate in the discussion and vote on the January Resolution presently before the Town Council, given his status as a licensed firearms dealer. 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). Additionally, the Code 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). In the present matter, the Petitioner’s business as a firearms dealer is not directly affected by the ability of the Town to issue permits to carry a concealed weapon, because permission to carry a concealed weapon is separate and distinct from the license or ability to purchase a weapon. See e.g. A.O. 2010-11 (opining that a member of the Lincoln Town Council was not required to recuse from the vote on an ordinance enlarging the pre-existing tax exemption for property owners over 65 years old and with an annual income less than $25,000, because even though the petitioner was over 65 he represented that his annual income was greater than $25,000 and, therefore, he would not be financially impacted by the passage or failure of that ordinance). Additionally, the action taken by the Town Council in approving this resolution will only result in a request to the General Assembly to change a law that the Town is not empowered to amend. Accordingly, the Commission finds that, absent any other relevant fact that would implicate provisions of the Code of Ethics, there is no direct financial nexus between the resolution presently before the Town Council and the Petitioner’s personal finances. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner may participate in the Town Council’s discussion and vote on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons, notwithstanding his status as a firearms dealer. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2010-11 Keywords: Recusal [1] Section 11-47-11, entitled “License or permit to carry concealed pistol or revolver,” provides in relevant part: The licensing authorities of any city or town shall, upon application of any person twenty-one (21) years of age or over having a bona fide residence or place of business within the city or town, or of any person twenty-one (21) years of age or over having a bona fide residence within the United States and a license or permit to carry a pistol or revolver concealed upon his or her person issued by the authorities of any other state or subdivision of the United States, issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state for four (4) years from date of issue, if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed. [2] Permits to carry a concealed weapon can be obtained in two ways, either from the city or town of your bona fide residence or place of business, § 11-47-11, or from the Attorney General’s Office, § 11-47-18.