Advisory Opinion No. 2015-4 Approved: January 13, 2015 Re: Virginia Lee QUESTION PRESENTED: The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in Town Council discussions and decision making relative to ground water pollution, including as a member of the Town Council’s Working Group on Potable Water and as the Town Council’s liaison to the Town’s Wastewater Management Commission, given that her house is located in a section of Town where there are specific concerns relating to water quality and wastewater disposal. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Charlestown Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in Town Council discussions and decision making relative to ground water pollution, including as a member of the Town Council’s Working Group on Potable Water and as the Town Council’s liaison to the Town’s Wastewater Management Commission, given that the circumstances herein justify the application of the class exception as set forth in Rhode Island General Laws § 36-14-7(b). The Petitioner was recently elected to serve as a member of the Charlestown Town Council (“Town Council”). The Town of Charlestown (“Town”) is located in southern Rhode Island, on the coast between Westerly and South Kingstown. The Petitioner informs that the Town has no municipal water or sewer systems. She states that most houses rely on individual wells for water and in-ground sewage disposal systems (“ISDS”) located on the same lot as the house. She represents that there are several “public” water supplies owned and operated by private entities known as community wells, and one community package sewage treatment plant in the Town. The Petitioner represents that there are specific concerns regarding water quality and wastewater treatment in the area of Town located south of Route 1. This area, which is dominated by two large salt ponds, Quonochontaug Pond and Ninigret Pond, has a densely developed land mass between the ponds and barrier beaches along the south coast. The Petitioner represents that her primary residence is on Lagoon Avenue in this area between Quonochontaug and Ninigret Ponds. She states that there are approximately 800 houses in this area. She informs that some of these houses have individual wells and others are connected to one of two community wells, the Central Beach Fire District Wells and the East Beach Water Corp Wells. She states that she has an individual well and ISDS on her property. The Petitioner represents that the Rhode Island Department of Health is concerned that these community wells are showing high levels of nitrate that may eventually render the water no longer potable. She informs that there is some evidence that the individual wells have high levels of nitrate as well. The Petitioner states that the Town Council created a new Working Group on Potable Water (“Working Group”), to which she has been appointed. The Working Group was created to identify, educate and evaluate potential next steps in continuing to have clean potable water in the Town.[1] Additionally, the Petitioner is the Town Council’s non-voting liaison to the Town’s Wastewater Management Commission (“WMC”). The purpose of the WMC is the “protection of the Town’s groundwater, which is of utmost importance as all of Charlestown relies only on groundwater for drinking water.”[2] Cognizant of the Code of Ethics, the Petitioner seeks guidance as to whether she may participate in the Town Council’s decision making, in addition to serving on the Working Group and as the Town Council’s liaison to the WMC, notwithstanding that she lives in the area of Town where there exist the greatest concerns about potable water. The Petitioner states that she was selected to serve on both the Working Group and as the Town Council’s liaison to the WMC because of her extensive professional experience and educational background in coastal resources, salt ponds and watershed protection, including more than thirty years of service at the Coastal Resources Center at the University of Rhode Island, most recently as U.S. Program Manager. The Petitioner states that the issue of potable water is essential for the Town as a whole, and the decisions of the Town Council, Working Group and WMC will impact not only her but every other owner of the approximately 800 houses in the area south of Route 1, between and around the two salt ponds. She represents that potential fixes could include: requiring homeowners to install water filters as a temporary stopgap; banning the use of herbicides, pesticides, insecticides and fertilizers; constructing a community water supply north of Route 1, away from potential salt water intrusion and in a less densely populated area; constructing a community sewer, essentially a large ISDS, away from salt water intrusion;[3] and/or connecting to Westerly’s municipal water supply. She informs that construction of a community-wide water supply or wastewater treatment system could result in assessments to each individual home owner connecting to the community systems or an increase in property taxes to pay for a municipal bond. On the other hand, she states that inaction by the Town could, in the future, result in decreased property values for houses that no longer have potable water and increased costs to the homeowners who purchase bottled water. A person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her 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 she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics are implicated, the Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. In the present matter, further deterioration of ground water quality could affect the Petitioner financially if she is not able to drink from the well on her property. On the other hand, it is likely that any changes to remediate the problem could also result in a financial impact on the Petitioner as a property owner in the affected area. However, the above representations suggest that any financial impact will likely be substantially similar among all of the property owners in the area south of Route 1, between and around the two salt ponds. Accordingly, we will consider whether the “class exception” applies to this unique set of circumstances. Section 36-14-7(b) of the Code, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of his or her duties in the public interest and of his or her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to him or her or any person within his or her family or any business associate, or any business by which the person is employed or which the person 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 extent than any other similarly situated member of the business, profession, occupation or group, or of 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. 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. In prior advisory opinions, the Ethics Commission applied the class exception to fact patterns related to wastewater treatment and water quality. See A.O. 2009-42 (applying the class exception and permitting the Portsmouth Town Solicitor to advise the Town regarding its consideration of the installation of sewage or some other form of community wastewater treatment that may affect approximately 4,000 lots, notwithstanding that he owned one of the lots that might be impacted); A.O. 2005-13 (applying the class exception and opining that a Jamestown Planning Commission member could participate in the Planning Commission’s consideration of zoning ordinance changes related to the protection of critical lands containing freshwater, high ground water table, and/or shallow impervious layer, notwithstanding that his property was located within the overlay district containing these lands, which is where approximately 45-50% of the island’s population resided). The Commission has previously applied the class exception in a variety of circumstances and has granted it before to classes smaller than the approximately 800 houses here, provided that the totality of the circumstances justified its application. See e.g. A.O. 2014-12 (applying the class exception and permitting a North Kingstown Town Council member to participate in the Town Council’s consideration of proposed comprehensive plan and zoning ordinance amendments relative to the Preserve at Rolling Greens development plan, notwithstanding that the petitioner owned one of 124 residences that received abutter’s notices as a result of ownership interests in the common property of the subdivision); A.O. 2013-5 (applying the class exception and opining that an East Providence City Council member could serve as the City Council’s representative member on the City’s Police and Fire Pension Fund Board, notwithstanding that her husband was one of the 250 current beneficiaries of the fund); A.O. 2005-22 (applying the class exception and opining that an Exeter Town Council member could participate in a proposed tax freeze ordinance for all property owners aged 65 and over, notwithstanding that his spouse was over 65 and could benefit from the tax freeze, because 250 to 300 other property owners would be similarly impacted by the ordinance). In the present matter, the Petitioner owns one of approximately 800 houses located in the area south of Route 1, between and around the two salt ponds. She is a member of a class that is comprised of the owners of these approximately 800 houses. She states that, irrespective of whether these houses are connected to an individual well or to a community well, all of the approximately 800 houses are affected by high levels of nitrate in the ground water. The official action contemplated by the Petitioner is participating as a member of the Town Council, the Working Group and as the Town Council’s liaison to the WMC to identify and evaluate ways to ensure that all areas of the Town continue to have potable water. The Petitioner’s official actions, at this point in time, are preliminary and will likely result in a plan to remediate ground water pollution. Here, based upon the facts represented above, it is reasonably foreseeable that any plan implemented by the Town will have a substantially similar financial impact upon all of the property owners of these approximately 800 houses. Either the property owners will face equal or proportional assessments for connecting to community water and/or wastewater systems, or there may be a Town-wide tax increase to subsidize improvements to the water and sewer infrastructure to prevent pollution and salt water intrusion. Considering the totality of the circumstances, it is the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 7(b) of the Code of Ethics. Accordingly, the Petitioner is not prohibited by the Code of Ethics from participating in Town Council discussions and decision making relative to ground water pollution, including as a member of the Town Council’s Working Group on Potable Water and as the Town Council’s liaison to the Town’s Wastewater Management Commission. The Petitioner is encouraged to seek further advice from the Commission if the plans to remediate ground water pollution impact her to a greater extent than any other similarly situated property owner in the Town. 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: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2014-12 A.O. 2013-5 A.O. 2009-42 A.O. 2005-22 A.O. 2005-13 Keywords: Class Exception Property Interest [1] The Working Group may include, but is not limited to, representatives of the following groups and Town departments: Quonochontaug Central Beach Association; Quonochontaug Central Beach Water Association; Quonochontaug East Beach Association; Quonochontaug East Beach Water Association; private well owners; Town Council President Thomas Gentz; Town Council member Virginia Lee; Town Administrator; member of the Planning Commission; Town Planner; Wastewater Commission & On-site Wastewater Manager/Environmental Scientist; Building/Zoning Official; GIS Coordinator; and other state officials and professionals with expertise in water resources, ground water quality and on-site wastewater disposal if needed. See Charlestown Town Council Draft Minutes 12-8-14 (attached to the Petitioner’s request letter). [2] http://www.charlestownri.org/index.asp?SEC=57BE787A-1F23-406A-906B-4FBC5BCACF34&Type=B_BASIC [3] The Petitioner states that proximity to the salt ponds and ocean in such a densely populated area, combined with rising sea levels and storm surges, can result in salt water contamination of ISDS, which could cause the ISDS to malfunction.