Advisory Opinion No. 2018-23 Rhode Island Ethics Commission Advisory Opinion No. 2018-23 Approved: March 27, 2018 Re: Paul Francis Kesson QUESTION PRESENTED: The Petitioner, a member of the Portsmouth Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and decision-making relative to mitigating the negative effects caused by the operation of a Town-supported wind turbine on the neighboring homes, given that the Petitioner is one of the affected residents. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Portsmouth Town Council, a municipal elected position, may not participate in the Town Council’s discussions and decision-making relative to mitigating the negative effects caused by the operation of a Town-supported wind turbine on neighboring homes, given that the Petitioner is one of the affected residents. However, the Petitioner may address the Town Council during its public comment session, provided that the Petitioner does not receive special access or priority that is not available to any other member of the public. The Petitioner is a member of the Portsmouth Town Council (“Town Council”). He represents that the Town of Portsmouth (“Town”) has entered into an agreement with the owner and operator of a 279-foot wind turbine located on the grounds of Portsmouth High School. The Petitioner states that residents neighboring the wind turbine have raised concerns regarding the loud noise produced by the turbine and the repeated shadows cast by its spinning blades (“shadow flicker”)[1] on their homes, causing disturbance to their regular sleep patterns and negatively affecting their overall quality of life. According to the Petitioner, there are approximately 112 properties affected by the noise. He explains that 75 of those properties, in addition to the noise, also experience shadow flicker. The Petitioner states that he experiences both loud noise throughout the year and shadow flicker for about one hour per day during the months of February and October. He explains that the loud noise is of greater concern as it affects all of the 112 properties continuously throughout the year. The Petitioner further represents that although he experiences shadow flicker approximately one hour per day, some residents experience shadow flicker up to two hours per day. The Petitioner states that affected neighbors have asked the Town Council to consider their concerns and vote on a resolution mitigating the effects of the wind turbine’s noise and shadow flicker on their quality of life. The Petitioner advises that he has recused and will continue to recuse himself from Town Council discussions and decision-making relative to the wind turbine until he receives guidance from the Ethics Commission. The Petitioner states that the Town Council is likely to consider various options including restriction on the wind turbine’s hours of operation and/or the possibility of offering financial compensation to the affected property owners. Given this set of facts, the Petitioner request an advisory opinion regarding whether the Code of Ethics prohibits him from participation in Town Council discussions and decision-making relative to mitigating the negative effects of the wind turbine on the neighboring properties. He also asks whether, upon recusal from Town Council discussions and decision-making, he may speak as a member of the public during the Town Council’s public comment session regarding the matter. 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, any person within his family, any business associate, or any business by which the Petitioner is employed or which the Petitioner 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 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 considers 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. The Commission has previously applied the class exception in a variety of circumstances involving city/town council members and their real estate holdings. 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 abutters’ notices as a result of ownership interests in the common property of the subdivision); 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). Here, the Petitioner represents that he is not certain whether the Town Council will consider only restrictions as to the operation of the wind turbine, or whether it will also discuss financial compensation to the affected residents. Since it is unclear at the onset of the Town Council’s discussions how any resolution to the noise and shadow flicker problem will impact the Petitioner, it is the opinion of the Ethics Commission that the Petitioner must recuse from participation in the Town Council’s discussions and decision-making relative to such matters. The Petitioner’s participation in such discussions places him in a position in which he may participate in defining the groups to be impacted and the extent of the impact. See A.O. 2003-58 (opining that the Director of Public Works in the Town of Warren was prohibited from participation in contract negotiations with the Steelworkers Union since it was unclear from the onset of negotiations how the contract would affect his daughter, who was a member of the Steelworkers Union). Notice of recusal shall be filed with the Ethics Commission pursuant to section 36-14-6. The Petitioner also asks whether, upon recusal from Town Council discussions and decision-making relative to the wind turbine, he may address the Town Council as a member of the public during the Town Council’s public comment session regarding possible resolutions to the noise and shadow flicker generated by the wind turbine. Under the Code of Ethics, a person subject to the Code, such as the Petitioner, may not represent himself before the agency of which he is a member or by which he is employed. Section 36-14-5(e)(1). This prohibition applies not only while he is an active member or employee of the agency, but continues in effect for a period of one (1) year after he has officially severed his position with the agency. Section 36-14-5(e)(4). Accordingly, a Town Council member is generally prohibited from representing himself in a matter pending before the Town Council while a member and for one year thereafter. However, Commission Regulation 36-14-7003 (“Regulation 7003”), sometimes called the “public forum exception,” provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child. Here, the Petitioner wishes to appear before the Town Council at an open meeting to provide comment regarding a possible resolution and remediation of the noise and shadow flicker caused by the wind turbine. The Petitioner represents that the noise and shadow flicker have a direct and continuing impact upon his property and that he would like to participate in order to protect his rights. In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2006-37 (member of Smithfield Town Council may, upon recusing from participation as a member of the Town Council, provide public comment as an abutter regarding a zone change petition filed on behalf of a limited liability company which proposes to construct condominiums on the subject property); A.O. 2005-16 (member of the Narragansett Town Council may, upon recusal, attend and provide public comment at meetings of the Town Council regarding a change of zone request where he is an abutter); A.O. 2003-15 (member of the Scituate Town Council may, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he is an abutter provided that he does not receive special access or priority not available to any other member of the public); A.O. 2002-65 (member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public). Consistent with these prior opinions, and pursuant to the public forum exception found in Regulation 7003, it is the opinion of the Ethics Commission that the Petitioner may address the Town Council regarding possible remediation to the noise and shadow flicker produced by the wind turbine, as long as the Petitioner does not receive special access or priority that is not available to any other member of the public. This, of course, does not apply to executive sessions, since those meetings are not generally accessible to the general public. We further caution the Petitioner that he may not use any confidential information he receives through his position on the Town Council to obtain financial gain for himself or his family. Section 36-14-5(d). 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) § 36-14-5(e) § 36-14-6 § 36-14-7(a) § 36-14-7(b) Commission Regulation 36-14-7003 Related Advisory Opinions: A.O. 2014-12 A.O. 2006-37 A.O. 2005-22 A.O. 2005-16 A.O. 2003-58 A.O. 2003-15 A.O. 2002-65 Keywords: Class Exception Public Forum Exception