Advisory Opinion No. 2019-25 Rhode Island Ethics Commission Advisory Opinion No. 2019-25 Approved: April 9, 2019 Re: Edward J. Brady QUESTION PRESENTED: The Petitioner, a member of the Cranston City Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in the City Council’s discussions and voting relative to enacting an ordinance that would ban the use of plastic carryout bags by Cranston business establishments, given the fact that the Petitioner owns and operates a restaurant in Cranston. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Cranston City Council, a municipal elected position, may participate in the City Council’s discussions and voting relative to enacting an ordinance that would ban the use of plastic carryout bags by Cranston business establishments, notwithstanding the fact that the Petitioner owns and operates a restaurant in Cranston. The Petitioner is a member of the Cranston City Council (“City Council”). In his private capacity, the Petitioner owns and operates several restaurants throughout Rhode Island, including The Thirsty Beaver Hometown Pub & Grub in Cranston. The Petitioner relates that the City Council recently voted to enact a new ordinance that would ban the use of plastic carryout bags in business establishments for retail checkout of goods (“the proposed ordinance”). The proposed ordinance defines “plastic carryout bag” as: Any plastic bag that is provided by a business establishment to a customer, typically at the point of sale, for the purpose of transporting purchases, not including plastic barrier bags, double-opening plastic bags, or reusable bags as defined herein, or plastic bags measuring larger than 28 inches by 36 inches. Proposed Amendment to the Code of the City of Cranston, § 8.12.140(d). This ban would apply to any “business establishment,” defined in the proposed ordinance as, “any commercial enterprise that provides plastic carryout bags to its customers[.]” Section 8.12.140(a). The Petitioner states that such business establishments include, but are not limited to, supermarkets, gas stations, drug stores, and restaurants. The Petitioner notes that restaurants are among the many types of businesses to which the proposed ordinance would apply because some restaurants use plastic bags for take-out orders. He relates that at an Ordinance Subcommittee meeting of the City Council on March 14, 2019, he voiced a concern that some restaurants may have a stockpile of previously purchased plastic bags, and that his comments resulted in an amendment to push the effective date of the proposed ordinance from January 1, 2020 to July 1, 2020. The Petitioner represents that, while the ordinance would apply to his Cranston restaurant, passage would not financially impact his operations because his restaurants do not use plastic carryout bags, opting instead to use paper bags as a slightly more expensive alternative. He notes, however, that other Cranston restaurants may currently use plastic bags for take-out orders and they would be required to stop such use under the ordinance. The Petitioner states that, out of an abundance of caution because he owns a restaurant, he recused from participating in the City Council’s March 25, 2019 vote to enact the proposed ordinance, which passed by a vote of 6-1. However, he states that the Mayor of Cranston recently vetoed the proposed ordinance and it is now on the City Council’s agenda for April 22, 2019, for a vote to override the Mayor’s veto. The Petitioner states that an override of the Mayor’s veto requires the affirmative vote of two-thirds (6 of 9 members) of the City Council. Given all of the above facts as represented, the Petitioner asks whether the Code of Ethics permits his participation in the City Council’s discussions and voting relative to overriding the Mayor’s veto of the proposed ordinance. Under the Code of Ethics, no public official shall in any way use his public office, or confidential information received through his holding any public office, to obtain financial gain, other than that provided by law, for himself, a family member, any business associate, an employer or any business which he represents. R.I. Gen. Laws § 36-14-5(d). In addition, a public official 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 and employment in the public interest. Section 36-14-5(a). In determining whether a substantial conflict exists, the Commission must consider whether it is “reasonably foreseeable” that the public official, a family member, a business associate, an employer or any business which the public official represents, would derive a direct monetary gain or suffer a direct monetary loss by reason of the official’s activity. Section 36-14-7(a); Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). As an initial matter, it does not appear to be reasonably foreseeable that the Petitioner stands to be financially impacted by the enactment of the proposed ordinance, given that the Petitioner’s Cranston restaurant does not use plastic carryout bags. Therefore, the proposed ordinance’s ban on plastic bags would have no impact on his current operations. While it may be that some other nearby restaurants do currently use plastic bags for take-out orders, and such restaurants may in some ways compete with the Petitioner’s restaurant, it seems unlikely that banning a competitor’s use of plastic bags would have a meaningful, corresponding financial impact on the Petitioner’s restaurant revenue. In the absence of any financial impact, the Code of Ethics does not prohibit the Petitioner’s participation in the City Council’s enactment of the ordinance or its vote to override the Mayor’s veto. See A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could 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 because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon); 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); A.O. 2002-30 (Jamestown Town Council member could participate in decision to locate a highway garage within 1,000 feet of her private property, given that under the facts represented it was not reasonably foreseeable that the petitioner would be financially impacted by the garage’s location). Based on the Petitioner’s representations and the above analysis, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participating in the City Council’s consideration of the proposed ordinance, including any discussions and voting relative to overriding the Mayor’s veto. 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: R.I. Gen. Laws § 36-14-5(a) R.I. Gen. Laws § 36-14-5(d) R.I. Gen. Laws § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) Related Advisory Opinions: A.O. 2012-2 A.O. 2010-11 A.O. 2002-30 Keywords: Recusal