Advisory Opinion No. 2020-51 Rhode Island Ethics Commission Advisory Opinion No. 2020-51 Approved: December 8, 2020 Re: Richard Constantine QUESTION PRESENTED: The Petitioner, a member of the Westerly Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in discussions and voting concerning whether to include a public right of way to the Town of Westerly’s Weekapaug Fire District Beach in the Town’s new Comprehensive Long Range Plan, given that the Petitioner is a resident of the Weekapaug Fire District. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in discussions and voting concerning whether to include a public right of way to the Town of Westerly’s Weekapaug Fire District Beach in the Town’s new Comprehensive Long Range Plan, given that the Petitioner is a resident of the Weekapaug Fire District. The Petitioner, who resides in the Weekapaug Fire District (“WFD”) in the Town of Westerly (“Town” or “Westerly”), is a member of the Westerly Planning Board (“Planning Board’). He was appointed by the Westerly Town Council (“Town Council”) in August of 2017 to serve a three-year term and reappointed in August of 2020 to serve a five-year term. The Petitioner identifies the WFD as one of four of the six fire districts in Westerly that has its own beach, adding that the remaining two fire districts in Westerly have no shoreline.[1] He explains that the Town Council has asked the Planning Board to hold a hearing on the latest, and presumably final, draft of the Town’s new Comprehensive Long Range Plan (“Plan”). Specifically, the Town Council seeks the opinion of the Planning Board concerning the potential inclusion in the Plan of Spring Avenue as a listed public Right of Way (“ROW”) to the Weekapaug Fire District Beach (“Beach”). The Petitioner states that the WFD is populated by approximately 300 residences. He represents that his personal residence is located approximately a quarter mile from the potential ROW and the Beach. He further represents that, presently, only WFD residents have access to that portion of the Beach at which the ROW would be located, adding that the proposed ROW has always been privately owned by the WFD. He explains that the WFD residents reserve for themselves approximately 500 feet of the Beach that is nearest to the parking lot available only to WFD residents (“private lot”). The Petitioner further explains that the public is presently allowed to park in a second parking lot near the private lot and to walk along a public road approximately 600 feet to a portion of the Beach that is open to the public. He states that, should the ROW be approved allowing public access to the Beach, the property values of WFD residents could be affected because the Beach in their community would no longer be private. The Petitioner represents that, although the Planning Board will vote after discussing the proposed ROW to determine its position on whether the ROW should be included in the Plan, the decision ultimately rests with the Town Council. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether he may participate in the Planning Board’s consideration of what to recommend to the Town Council concerning the potential incorporation of the proposed ROW into the Plan. 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 or employment 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). In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must ascertain whether the Petitioner would be financially impacted by the official action that is under consideration. Here, the Petitioner represents that the Planning Board will, at the request of the Town Council, engage in discussions and voting regarding whether the Town Council should elect to incorporate the proposed ROW into the Plan. The Petitioner further represents that the value of his home, and the property of all WFD residents, will be impacted if the proposed ROW is incorporated into the Plan. Based on the above, the Planning Board’s discussions and voting on this issue is likely to influence the Town Council’s decision, which will financially impact the Petitioner. Notwithstanding the Petitioner’s admitted interest in the Town Council’s decision-making on this issue, section 36-14-7(b) of the Code of Ethics, referred to as the “class exception,” states that a public official will not have an interest which is in substantial conflict with the proper discharge of his official duties if any benefit or detriment accrues to him, or any person within his family or any business associate, or any business by which he is employed or which he represents, “as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” When determining whether any particular circumstance supports and justifies the application of the class exception, the Ethics Commission considers 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 noted the general difficultly of applying the class exception to matters involving actions that impact real property, given the unique nature of each discrete piece of real estate and the fact that actions affecting real property and its value will likely create a dissimilar impact on each property owner. See, e.g., A.O. 2012-13 (opining that the class exception was inapplicable and, thus, a member of the Westerly Town Council was prohibited from participating in the consideration of a resolution to fund a sewer expansion to the Misquamicut Beach area, given that three members of the Board of Directors of the Misquamicut Beach Association (“MBA”), the petitioner’s employer, as well as 90% of the MBA’s business members and 12 of the MBA’s homeowner members would incur dissimilar financial impacts resulting from the Town Council’s approval or disapproval of the sewer expansion); A.O. 2008-63 (opining that the class exception was inapplicable and, thus, a member of the Narragansett Town Council was prohibited from participating in the hearings and vote on an amendment to the Narragansett Zoning Ordinance, given that he owned two of approximately seventy properties located within the district that was the subject of the amendment, and given that actions affecting real property and its value were likely to create a dissimilar impact on each property owner). Contra A.O. 2015-4 (applying the class exception and permitting a Charlestown Town Council member to participate in the Town Council’s discussions and decision-making relative to remediating ground water pollution, given that it was reasonably foreseeable that the financial impact upon the entire class would be substantially similar in the form of equal or proportional assessments to connect to community water and/or wastewater systems, or a Town-wide tax increase to subsidize improvements to the water and sewer infrastructure to prevent pollution and salt water intrusion). Here, the Petitioner represents that, should the proposed ROW be approved for incorporation into the Plan, thus allowing public access to a portion of the Beach that had always been private, the property values of WFD residents could be affected because the portion of the Beach hosting the ROW would no longer be available solely for private use by WFD residents. Regardless of the fact that the Town Council is the ultimate decision maker relative to whether the ROW is incorporated into the Plan, that the Planning Board has been designated by the Town Council to make a recommendation on the matter means that, were the Petitioner to participate, he would be taking official action that could financially impact him.[2] Accordingly, based on the facts as represented, a review of the applicable provisions of the Code of Ethics, and consistent with advisory opinions previously issued, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in discussions and voting concerning whether to include a public right of way to Westerly’s Weekapaug Fire District Beach in the Town’s new Comprehensive Long Range Plan. The class exception found at section 36-14-7(b) is inapplicable to the Petitioner’s circumstances. Notice of recusal must be filed consistent with the provisions of 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) § 36-14-6 § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2015-4 A.O. 2012-13 A.O. 2008-63 Keywords: Conflict of Interest Class Exception [1] The Petitioner states that the Shelter Harbor Fire District, one of the four fire districts that has its own beach, rents the Weekapaug Fire District Beach. [2] The Petitioner’s official activity would be participating in the discussions and vote that will produce a recommendation to the Town Council about whether the Town Council should vote to include the ROW in the Plan. The Town Council will then discuss the Planning Board’s recommendation before deciding. While it is the Town Council that makes the ultimate decision about whether the ROW should be included in the Plan, because the Town Council asked the Planning Board for its recommendation, the reasonable expectation is that the Town Council will consider said recommendation carefully before voting. Regardless of whether the Town Council adopts the Planning Board’s recommendation, the Planning Board’s deliberations and ultimate recommendation are, for all intents and purposes, the equivalent of pre-decision discussions by the Town Council leading up to its vote. Adherence to the provisions of the Code of Ethics requires that public officials recuse not only from voting on a particular matter with which they have a conflict of interest, but that they likewise recuse from all discussions prior to a vote.