Advisory Opinion No. 2018-26 Rhode Island Ethics Commission Advisory Opinion No. 2018-26 Approved: May 15, 2018 Re: Philip Overton 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 participation in the Town Council’s discussion and decision-making relative to the Town of Westerly Harbor Management Plan’s mooring regulations, given that his spouse owns property with mooring rights. 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 not prohibited by the Code of Ethics from participation in the Town Council’s discussion and decision-making relative to the Town of Westerly Harbor Management Plan’s mooring regulations, notwithstanding that his spouse owns property with mooring rights. The Petitioner is a member of the Westerly Town Council (“Town Council”). He represents that the Town of Westerly Harbor Management Commission (“HMC”), under the guidance of the Rhode Island Coastal Resources Management Council (“CRMC”), developed a Harbor Management Plan (“Plan”) in order to regulate the Town of Westerly’s (“Town”) water resource uses. The Petitioner states that the HMC has submitted the Plan to the Town Council for its review, revision, and approval. The Petitioner states that his wife owns property with mooring rights in the Town, which will be subject to the Plan’s new mooring regulations, and that there are approximately seven hundred (700) waterfront properties with mooring rights in the Town. He represents that any mooring rights regulations contained in the Plan will impact all mooring rights owners the same. Given this set of facts, the Petitioner asks whether he may participate in the Town Council’s discussion and decision-making relative to mooring-related regulations. A person subject to the Code of Ethics 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). Furthermore, the Petitioner may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, an employer, a business associate, or a business that he represents. Section 36-14-5(d). Additionally, under the general nepotism prohibitions of the Code of Ethics, a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family will derive a direct monetary gain or suffer a direct monetary loss. Commission Regulation 5004(b)(1). The definition of “any person within his [] family” specifically includes “spouse.” Commission Regulation 36-14-5004(a)(2). However, the above prohibitions are subject to a “class exception” which states that a public official will not have an interest in substantial conflict with his public duties if any benefit or detriment accrues to him or his family member, employer or business associate “as a member of a . . . group, or of any significant and definable class of persons within the . . . group, to no greater extent than any other similarly situated member of the . . . group, or the significant and definable class of persons within the . . . group.” Section 36-14-7(b) (“section 7(b)”). 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). 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 the instant matter, the Petitioner represents that while his spouse would be financially impacted by the mooring rights regulations contained in the Plan, any such impact would be equally realized by a significant and definable group of approximately 700 waterfront property owners with mooring rights. Specifically, the Petitioner points out that the Plan includes the imposition of a flat yearly mooring rate to all mooring owners. Under such circumstances, and to the extent that any Town Council’s discussions and decision-making would treat all mooring rights owners equally, the Ethics Commission concludes that the class exception set forth in section 7(b) applies and the Petitioner may participate in discussions and voting relative to the review and the approval of the Plan. For example, a decision to raise the fee for a mooring would impact all owners the same and would likely fall within the class exception. See A.O. 2007-53 (applying the class exception and opining that a member of the Newport Waterfront Commission, who leased a commercial mooring from the City, and had been on the City’s waiting list for a private mooring, could participate in discussions and voting on a mooring fee increase, given that he would be impacted to no greater or lesser extent than approximately 750 other persons who leased moorings). However, in the event that the Town Council’s discussions veer into revision of the Plan in ways that impact the Petitioner’s spouse individually, or as a member of a much smaller class or subclass of mooring rights owners, the Petitioner must either recuse from participation or seek additional guidance from the Ethics Commission. Upon recusal, a statement of conflict of interest must be filed with the Town Council and the Ethics Commission pursuant to section 36-14-6. 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) § 36-14-6 § 36-14-7(a) § 36-14-7(b) Commission Regulation 5004 Related Advisory Opinions: A.O. 2014-12 A.O. 2007-53 A.O. 2005-22 Keywords: Class Exception