Advisory Opinion No. 2020-39 Rhode Island Ethics Commission Advisory Opinion No. 2020-39 Approved: September 22, 2020 Re: Randall White 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 voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that an unimproved portion of the lot on which his personal residence is located is within such an area. RESPONSE: It is the opinion of the 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 voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas , notwithstanding that an unimproved portion of the lot on which his personal residence is located is in such an area, because it is not reasonably foreseeable that the Petitioner or a member of his family would be financially impacted by his participation. Further, even if there were an indication that the Petitioner or a member of his family would be financially impacted, any such impact would likely be substantially the same as that of all similarly situated property owners in Jamestown, therefore justifying the application of the class exception as set forth in R.I. Gen. Laws § 36-14-7(b) of the Code of Ethics. The Petitioner was elected to a two-year term on the Jamestown Town Council (“Town Council”) in November of 2018. Prior to his retirement in 2014, the Petitioner served for 32 years as an Assistant Attorney General and criminal prosecutor for the Rhode Island Office of the Attorney General. The Petitioner states that the Town Council is soon expected to consider an amendment to the Jamestown Code of Ordinances proposed by the Jamestown Planning Commission that would continue to restrict the height of both newly constructed structures and renovations to existing structures in Jamestown to 35 feet, but that would allow up to an additional 5 feet for properties located in a designated Special Flood Hazard Area (“SFHA”). He explains that, while the building height limitation in Jamestown is currently 35 feet for all structures and has been for years, provisions of state law permit builders to exceed the height limit, by more than five feet, on properties in certain flood zone areas where living space can be built no lower than the parcel’s base flood elevation. He provides by way of example that, if the base flood elevation of a particular property is 15 feet, and the municipality’s height limit is 35 feet, then the total height of the building could become 35 feet plus 15 feet, for a total of 50 feet. The Petitioner offers that proponents of the proposed amendment take the position that a strict height limit of 35 feet, and no more than 40 feet for properties located in a SFHA, comports with the character of buildings on the island, while opponents of the proposed amendment argue that its passage would result in different, unfair treatment of those who own property in a designated SPFA.[1] The Petitioner states that there are 3,728 parcels in Jamestown, 622 of which are wholly or partially located within a SFHA. The Petitioner represents that he and his wife have lived continuously at their home in Jamestown since 1982. He further represents that, although the home is owned by his wife and his wife’s brother, who lives in Maryland and has not lived in the house during the past 38 years, the Petitioner and his wife pay all of the taxes on the home and have been responsible for its upkeep and maintenance since they have lived there. The Petitioner states that his home is built on waterfront property. He further states that the house was constructed in 1918, and that the portion of the property upon which the house stands is not presently designated as a SFHA. He adds that, even if it were, he and his wife have no intention or desire to undertake any renovation that would affect in any way the height of the structure. He explains that they put a new roof on the house in 2017, adding that they do not intend to sell their home in the foreseeable future, if at all. The Petitioner represents that an unimproved portion of the lot between the house and the shore consists of land that is presently designated as a SFHA. He explains that, even if he and his wife were inclined to build on that portion of the property, which they are not, they would most likely be unable to do so in light of considerations related to its proximity to the shore independent of the proposed amendment. The Petitioner adds that, even if they were able and wanted to build on the unimproved portion of their lot, they would not construct a building that would exceed 35 feet. A person subject to the Code of Ethics 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 in the public interest. 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, any person within his family, his business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest is not necessarily certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Further, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, any person within his family, his employer, his business associate, or any business that he represents. Section 36-14-5(d). Finally, the Code of Ethics provides that no public official shall participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family will derive a direct monetary gain or suffer a direct monetary loss as a result. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities - Nepotism (36-14-5004) (“Regulation 1.3.1”). The definition of “any person within [a public official’s] family” specifically includes “spouse” and “brother-in-law.” Regulation 1.3.1(A)(2). In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must ascertain whether the Petitioner and or a member of his family will be financially impacted by the official action that is under consideration. If a financial impact, be it positive or negative, is not reasonably foreseeable, then the Petitioner is not required by these provisions of the Code of Ethics to recuse from participation in discussions and voting on the issue. See A.O. 2019-25 (opining that a member of the Cranston City Council could participate in City Council discussions and voting relative to a proposed ordinance that would ban the use of plastic bags by Cranston business establishments, notwithstanding that the petitioner owned and operated a restaurant in Cranston, given the petitioner’s representations that the proposed ordinance’s ban on plastic bags would have no impact on his current operations); 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 discussions and voting 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). Here, there is nothing to indicate that the Petitioner or any member of his family would be financially impacted by his participation in the discussions and voting relative to the proposed amendment because it is not reasonably foreseeable that there will be additional renovations to the existing house or a second building constructed on the property. Even if there were an indication that the Petitioner and/or a member of his family would be financially impacted by the Petitioner’s participation in Town Council discussions and voting relative to the proposed amendment, the foregoing representations suggest that any such impact would likely be substantially the same as that upon all other similarly situated owners of SFHA properties in Jamestown, thereby justifying the application of the class exception found in section 36-14-7(b) of the Code of Ethics.[2] See A.O. 2016-28 (opining that a member of the Jamestown Town Council could participate in discussions and voting relative to a proposed ordinance that would require residential landlords in Jamestown to file an emergency contact form with the Town Clerk, notwithstanding that the Petitioner owned a rental property that would be subject to the proposed ordinance, because the proposed ordinance would apply equally to all 500 residential rental properties, justifying the application of the class exception). Accordingly, based upon the Petitioner’s representations, the application of the Code of Ethics, and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is permitted to participate in the Town Council’s discussions and voting relative to the proposed amendment to the Jamestown Code of Ordinances. The Petitioner is advised, however, that should circumstances change such that it does become reasonably foreseeable that he, or a member of his family, his business associate, or any business by which he is employed could be financially impacted by his participation, he must recuse from further participation consistent with section 36-14-6, or seek further guidance from the Ethics Commission. 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) Prohibited Activities - Nepotism (36-14-5004) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) Related Advisory Opinions: A.O. 2019-25 A.O. 2016-28 A.O. 2012-2 Keywords: Nepotism Recusal [1] The Petitioner states that, under the proposed amendment, those areas designated as SFHA are subject to change in accordance with periodic updates by the Coastal Resources Management Council every ten years, or as otherwise necessary. [2] The class exception 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 or his family member, his employer or his 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 the . . . group.” Section 36-14-7(b). When determining whether any particular circumstance supports and justifies the application of the class exception, the 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.