Advisory Opinion No. 2019-5 Rhode Island Ethics Commission Advisory Opinion No. 2019-5 Approved: January 8, 2019 Re: William J. Piva, Jr. QUESTION PRESENTED: The Petitioner, a member of the Jamestown 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 increasing the amount of a tax benefit presently available to veterans, given that he is a veteran who is eligible for and receives the existing tax benefit. 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 discussions and decision-making relative to increasing the amount of a tax benefit presently available to veterans, notwithstanding that he is a veteran who is eligible for and receives the existing tax benefit. Consistent with the Code of Ethics class exception, the Petitioner would be affected by any increase in the tax benefit under discussion to no greater or lesser extent than the significant and definable class of 291 veterans who are eligible for and/or receive the current tax benefit. The Petitioner is a member of the Jamestown Town Council (“Town Council”). He represents that a local veterans group has requested that the Town Council review and increase the current $150 tax benefit (“tax benefit”) presently available to veterans in the Town of Jamestown (“Town”). The Petitioner states that he qualifies for and receives the existing tax benefit, and notes that he would be impacted by any increase in the amount of the tax benefit, as would approximately 291[1] Jamestown residents who are currently qualified for and receive the benefit. Based on these representations, the Petitioner asks whether the Code of Ethics permits his participation in the Town Council’s discussions and decision-making relative to the increase in the amount of the current tax benefit available to the veterans in the Town. Under the Code of Ethics, a public official may not participate in discussions and decision-making relative to any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties. 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 a family member, employer or business associate 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, employer, business associate, or a business that he represents. Section 36-14-5(d). However, the above prohibitions contain a “class exception” which states that a public official will not have an interest which is 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 . . . group.” Section 36-14-7(b). Recently, the Ethics Commission issued Advisory Opinion 2018-35 containing nearly identical facts to these represented in the instant matter. There, the Ethics Commission opined that a now-former member of the Jamestown Town Council could participate in the Town Council’s consideration of an increase in the amount of a tax credit available to veterans, notwithstanding that he was a veteran who was eligible for and received 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 was affected by the amendments under discussion to no greater or lesser extent than the significant and definable class of approximately 308 then-eligible veterans. See also 2017-41 (applying the class exception to allow a member of the Charlestown Town Council to participate in the Town Council’s consideration of an increase in the amount of a tax credit available to veterans, given that the petitioner was financially impacted by the increase to no greater or lesser extent than the approximately 528 other residents who were eligible for the credit). In the instant matter, the Petitioner is one of approximately 291 Jamestown residents who qualify for and receive the existing tax benefit. While the Petitioner would be financially impacted by a change in the amount of the tax benefit, the Petitioner represents that he would be impacted to no greater or lesser extent than any of the 291 veterans who are currently eligible for the tax benefit and potential increase. Under these 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 the request to increase the amount of the current tax benefit available to veterans in the ways described herein. In the event that that Town Council’s discussions veer into amending the tax benefit in ways that impact the Petitioner 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) Related Advisory Opinions: A.O. 2018-35 A.O. 2017-41 Keywords: Class Exception [1] The Petitioner represents that there are presently 291 veterans who receive up to $150 as a tax benefit, 14 of whom are service disabled veterans who receive an additional benefit up to $300.