Advisory Opinion No. 2018-34 Rhode Island Ethics Commission Advisory Opinion No. 2018-34 Approved: June 5, 2018 Re: Kristine S. Trocki QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she may participate in the Town Council’s discussion and decision-making relative to an increase in the amount of the tax exemption available for veterans, given that her spouse is eligible for and receives the existing tax exemption. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, may participate in the Town Council’s discussion and decision-making relative to an increase in the amount of the tax exemption available for veterans, notwithstanding that her spouse is a veteran who is eligible for and receives the existing tax exemption. In accordance with the Code of Ethics’ class exception, the Petitioner’s spouse would be affected by the amendments under discussion to no greater or lesser extent than the significant and definable class of all currently eligible veterans. The Petitioner is the President of the Jamestown Town Council (“Town Council”). She states that the Town Council is considering an amendment to an ordinance that would potentially increase the current $150 tax credit exemption (“tax credit”) available to veterans. The Petitioner states that her spouse qualifies for and receives the existing veterans’ tax credit. However, she notes that any increase in tax credit would impact her spouse to no greater or lesser extent than the approximately 308 other residents who are currently eligible for the tax credit. Based on these representations, the Petitioner asks whether the Code of Ethics permits her participation in the Town Council’s discussions and voting relative to the ordinance amendment. Under the Code of Ethics, a public official may not participate in the Town Council’s discussions or voting relative to any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the public official has reason to believe or expect that she or her family member, employer or business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Furthermore, 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). Additionally, under the general nepotism prohibitions of the Code of Ethics a public official shall not participate in any matter as part of her public duties if she has reason to believe or expect that any person within her family, or any household member will derive a direct monetary gain or suffer a direct monetary loss. Commission Regulation 5004(b)(1). The definition of “any person within [] her family” specifically includes “spouse.” Commission Regulation 36-14-5004(a)(2). However, the above prohibitions contain a “class exception” which states that a public official will not have an interest in substantial conflict with her public duties if any benefit or detriment accrues to her or her 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 . . . group.” Section 36-14-7(b) (“section 7(b)”). Recently, the Ethics Commission issued Advisory Opinion 2017-50 containing nearly identical facts as the facts in the instant matter. There, the Ethics Commission opined that a Charlestown Town Council member could participate in the Town Council’s consideration of an increase in the amount of a tax credit available to veterans, notwithstanding that her spouse was a veteran who was eligible for the existing tax credit. The Ethics Commission based its opinion on the fact that, in accordance with the Code of Ethics’ class exception, the petitioner’s spouse would be affected by the amendments under discussion to no greater or lesser extent than the significant and definable class of all 528 eligible veterans. Similarly, the Ethics Commission has applied the class exception to allow town council members who were over the age of 65 to participate and vote on ordinances to freeze the property taxes of residents who are over the age of 65. See A.O. 2005-22 (member of Exeter Town Council may vote on senior tax freeze ordinance for which he and his spouse would qualify, given that the ordinance applies equally to some 250-300 residents); A.O. 2002-27 (Exeter Town Council member may participate in Town Council’s decision to enact a senior tax freeze ordinance that applies to 350 residential homeowners in the Town); Compare A.O. 99-82 (declining to apply the class exception to a proposed elderly and disabled tax freeze ordinance where the class of eligible recipients was deemed too small). In the instant matter, the Petitioner’s spouse is one of approximately 308 Jamestown residents who qualify for the existing veterans’ tax credit. While the Petitioner’s spouse would be financially impacted by a change in the amount of the tax credit, the Petitioner represents that he would be impacted to no greater or lesser extent than the approximately 308 other residents who are currently eligible for the credit. Under such circumstances, 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 amending the ordinance in the ways described herein. In the event that that Town Council’s discussions veer into amending the ordinance in ways that impact the Petitioner’s spouse individually, or as a member of a much smaller class or subclass of veterans, the Petitioner must either recuse from participation or seek additional guidance from the Ethics Commission. Upon such 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 36-14-5004(a)(2). Commission Regulation 36-14-5004(b)(1) Related Advisory Opinions: A.O. 2017-50 A.O. 2005-22 A.O. 2002-27 A.O. 99-82 Keywords: Class exception