Advisory Opinion No. 2019-6 Rhode Island Ethics Commission Advisory Opinion No. 2019-6 Approved: January 8, 2019 Re: Nancy A. Beye 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 discussions and decision-making relative to increasing the amount of a tax benefit presently available to veterans, given that her spouse is eligible for 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 her spouse is a veteran who is eligible for the existing tax benefit because, consistent with the Code of Ethics class exception, the Petitioner’s spouse would be affected by any increase in the amount of the tax benefit to no greater or lesser extent than the significant and definable class of all currently eligible veterans. The Petitioner is a member of the Jamestown Town Council (“Town Council”). She represents that a local veterans group has requested that the Town Council review and increase the current $150 tax benefit (“tax benefit”) available to veterans in the Town of Jamestown (“Town”). The Petitioner states that her spouse qualifies for but does not receive the existing tax benefit, adding that any increase in the amount of the tax benefit would impact her spouse to no greater or lesser extent than the approximately 291[1] veterans who are currently eligible for the tax benefit. Based on these representations, the Petitioner asks whether the Code of Ethics permits her participation in the Town Council’s discussions and decision-making relative to increasing the amount of the tax benefit available to the veterans in the Town. Under the Code of Ethics, a public official may not participate in discussions or decision-making 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 520-RICR-00-00-1.3.1(B)(1) - Prohibited Activities – Nepotism (36-14-5004).[2] The definition of “any person within [] her family” specifically includes “spouse.” Commission Regulation 520-RICR-00-00-1.3.1(A)(2). 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 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 2018-34 containing nearly identical facts to those 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 her spouse 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’s spouse would be affected by any increase to no greater or lesser extent than the significant and definable class of all 308 eligible veterans. See also A.O. 2017-50 (applying the class exception to permit 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 her spouse 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’s spouse is one of approximately 291 Jamestown residents who qualify for the existing tax benefit. While the Petitioner’s spouse 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 benefit. 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 decision-making relative to amending the ordinance 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’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) 520-RICR-00-00-1.3.1(B)(1) 520-RICR-00-00-1.3.1(A)(2) Related Advisory Opinions: A.O. 2018-34 A.O. 2017-50 Keywords: Class Exception