Advisory Opinion No. 2020-12 Rhode Island Ethics Commission Advisory Opinion No. 2020-12 Approved: February 11, 2020 Re: The Honorable Gordon Rogers QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Senate, a state elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from submitting a bill in the Rhode Island Senate which would allow volunteer firefighters who meet certain requirements to utilize the State’s vehicle bid list to purchase discounted personal vehicles, given that the Petitioner is a volunteer firefighter. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Senate, a state elected position, is not prohibited by the Code of Ethics from submitting a bill in the Rhode Island Senate which would allow volunteer firefighters who meet certain requirements to utilize the State’s vehicle bid list to purchase discounted personal vehicles, notwithstanding that the Petitioner is a volunteer firefighter. The Petitioner is a member of the Rhode Island Senate (“Senate”), representing District 21, which includes the Towns of Coventry, Foster, Scituate, and West Greenwich. He would like to submit a bill in the Senate that would allow volunteer firefighters in Rhode Island to utilize the State’s vehicle bid list to purchase new personal vehicles at a preferential price. He explains that, under the bill, the volunteer firefighters would have to meet certain requirements, such as completing 80 hours of training and/or responding to 25 percent of the call volume per year. The Petitioner represents that there are at least 5,000 volunteer firefighters in the State, of which at least 800 to 1,000, including him, currently meet the proposed requirements. The Petitioner further represents that he is not planning to take advantage of the bill, should it pass, and states that the purpose behind the proposed bill is to help retain, and possibly increase, the present pool of volunteer firefighters. Given this set of facts the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics allows him to submit the bill in the Senate. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that 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 exists if an official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, the Code of Ethics prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family member, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). However, there exists a so-called “class exception” to these prohibitions 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, any person within his family, his business associate or his employer “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). When determining whether any particular circumstance supports and justifies the application of the class exception, the Ethics 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. The Ethics Commission has previously applied the class exception in a variety of circumstances involving proposed legislation. In Advisory Opinion 2008-25, for example, the Ethics Commission applied the class exception when opining that a member of the House of Representatives could vote on legislation that would require insurers of commercial properties to provide a premium credit for the installation of fire suppression and prevention equipment, notwithstanding the fact that the petitioner owned and operated a business that, among other things, sold and installed fire alarms. The Ethics Commission reasoned that the proposed legislation would impact equally all owners of insured commercial property who were required to purchase and install fire prevention and suppression equipment, and would not benefit the petitioner’s customers to any greater or lesser extent than any other owner of commercial property in the state, a group that numbered in the thousands. See also A.O. 2018-36 (opining that a legislator serving in the Rhode Island Senate could participate in the Senate’s discussions and voting relative to legislation that would provide for a stipend to be paid to all retired teachers or their beneficiaries during years where no cost of living adjustments are applied to teachers’ retirement benefits, notwithstanding that he was a public school teacher who was vested in the Employees’ Retirement System of Rhode Island, given that the petitioner would be financially impacted to no greater or lesser extent than any other similarly situated participants in the pension plan); A.O. 2017-25 & 26 (opining that members of the House of Representatives who were firefighters could participate in legislation that would impact firefighters across the state who collectively bargained, either permitting or mandating expired contract terms to continue until a successor agreement is reached). Here, the proposed legislation would impact all volunteer firefighters in Rhode Island who meet the requisite requirements, permitting them to take advantage of the State’s preferential pricing on new vehicles. The passage of the legislation contemplated by the Petitioner, who is a member of the subclass of volunteer firefighters who currently meet the proposed requirements and number at least 800 to 1,000 members, will affect all such volunteer firefighters equally. The Petitioner will not be impacted to any greater or lesser extent than other similarly situated volunteer firefighters in the subclass. It is therefore the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 36-14-7(b) of the Code of Ethics, and that the Petitioner may introduce and participate in the Senate’s consideration of the proposed legislation. However, should the proposed legislation impact a smaller subclass of volunteer firefighters, or impact the Petitioner individually or differently than the other volunteer firefighters to whom the legislation would apply, the Petitioner should either refrain from submitting the bill and/or recuse from participating in its consideration, or seek further guidance from the Ethics Commission. Notice of recusal, when necessary, shall be in accordance with section 36-14-6 of the Code of Ethics. 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. 2018-36 A.O. 2008-25 A.O. 2017-26 A.O. 2017-25 Keywords: Class Exception