Advisory Opinion No. 2020-41 Rhode Island Ethics Commission Advisory Opinion No. 2020-41 Approved: September 22, 2020 Re: Mary E. Meagher QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, who in her private capacity is an architectural designer, requests an advisory opinion regarding whether she 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 the property of one of her current clients is located 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, who in her private capacity is an architectural designer, 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 the property of one of her current clients is located within such an area, because neither the Petitioner nor her client would be financially impacted by the Petitioner’s participation. Additionally, even if there were an indication that the Petitioner’s client 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 has been a member of the Jamestown Town Council (“Town Council”) since 2012. In her private capacity, the Petitioner is an architectural designer with a practice in the Town of Jamestown (“Town”). She 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”). The Petitioner explains that, while the building height limitation in Jamestown for all structures is currently 35 feet and has been for years, provisions of state law permit builders to exceed the height limit, by more than 5 feet, on properties in certain flood zone areas where living space can be built no lower than the parcel’s base flood elevation.[1] The Petitioner states that there are 3,728 parcels in Jamestown, 622 of which are wholly or partially located within the SFHA. The Petitioner represents that she does not own property within the SFHA and that the proposed amendment would not affect her ability to perform her private work as an architectural designer. She explains that whether a house is located on a hill, or a flat plain, inland, or on the water, each property has its unique characteristics and constraints and that it is her job, as is the job of all designers and builders, to work with those characteristics and constraints. The Petitioner further explains that, over the course of thirty-three years of working as a residential designer in Jamestown, she has had no more than 5 projects in Jamestown that have been subject to flood zone regulations, one of which is for a current client. She states that this project is already subject to height constraints imposed by the Rhode Island Coastal Resources Management Council (“RICRMC”) prohibiting the height of the structure from exceeding the height of a one-story building, which would be less than 35 feet. Therefore, the Petitioner states that the proposed amendment would have no impact on the project. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether she may participate in the Town Council’s discussions and voting relative to the proposed amendment. A person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if a person subject to the Code of Ethics has reason to believe or expect that she, any person within her family, her business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her 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). Finally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, any person within her family, her employer, her business associate, or any business that she represents. Section 36-14-5(d). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). 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 her business associate 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 her business associate, her current client, would be financially impacted by her participation in the discussions and voting relative to the proposed amendment, given her representation that she does not own property within the SFHA and that her client’s project is already subject to height constraints imposed by the RICRMC. Even if there were an indication that the Petitioner’s business associate would be financially impacted by the Petitioner’s participation in Town Council discussions and voting relative to the proposed amendment, the above 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 discussion 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 she, or a member of her family, her business associate, or any business by which she is employed could be financially impacted by her participation, she 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: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) § 36-14-7(b) 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]For example, 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. Also, 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 her public duties if any benefit or detriment accrues to her or her family member, her employer or her 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.