Advisory Opinion No. 2021-29

Rhode Island Ethics Commission

Advisory Opinion No. 2021-29

Approved: April 27, 2021

Re: Thomas N. Warren

QUESTION PRESENTED :

The Petitioner, the Chairman of the Narragansett Recreation Advisory Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in Recreation Advisory Board discussions and recommendations to the Narragansett Town Council concerning the existing rental policy for cabanas located directly on the Narragansett Town Beach, given that the Petitioner’s spouse currently rents one of the cabanas.

RESPONSE :

It is the opinion of the Rhode Island Ethics Commission that the Petitioner,  the Chairman of the Narragansett Recreation Advisory Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in Recreation Advisory Board discussions and recommendations to the Narragansett Town Council concerning the existing rental policy for cabanas located directly on the Narragansett Town Beach, given that the Petitioner’s spouse currently rents one of the cabanas.

The Petitioner is the Chairman of the Recreation Advisory Board in the Town of Narragansett (“Town” or “Narragansett”), having been appointed to the Recreation Advisory Board by the Narragansett Town Council (“Town Council”).  The Petitioner states that he is currently serving his second consecutive three-year term which will expire on November 1, 2023, and that Recreation Advisory Board members are prohibited from serving more than two consecutive terms.  He cites among the responsibilities of the Recreation Advisory Board the following: the development of a recreational activities plan; the review of the Town’s recreation program; the review of the annual recreational activities calendar as presented by the Director of the Parks and Recreation Department and the recommendation of any changes, additions, or deletions, as appropriate; the holding of public hearings on matters related to recreation and the submission of findings and recommendations to the Town Council; and the cooperation with various municipal agencies and officials in planning future recreational facilities and programs.

The Petitioner represents that the Recreation Advisory Board is responsible for developing policies for the Narragansett Town Beach (“Town Beach”) and presenting them to the Town Council for consideration.  He describes the 84 cabanas located directly on the sand of the Town Beach as one of the Town Beach’s most prominent features.  The Petitioner states that the cabanas are highly sought after and that the wait to rent a seasonal cabana is ten to fifteen years.  The Petitioner further states that the annual rental fee for a cabana is $2,500 and that there are presently more than 300 people on the waiting list to rent a cabana.  The Petitioner represents that roughly six years ago, after being on the waiting list for approximately ten years, his spouse became eligible to rent one of the cabanas at the Town Beach.  He further represents that his spouse has been renting a cabana since that time, that he and his spouse continue to enjoy the cabana, and that they have already paid the rental fee for the 2021 summer season that was due on or before March 1, 2021.

The Petitioner anticipates that the Recreation Advisory Board will soon be undertaking a review of the present life term rental policy for the cabanas and quite possibly recommending changes to that policy for consideration by the Town Council.  The Petitioner is unsure of what those changes might be and whether and to what extent those changes might impact those who currently rent the cabanas; those currently on the waiting list; and others who might not yet be on the waiting list but who might be interested in renting a cabana if given the opportunity to do so.   Cognizant of the Code of Ethics, and committed to acting in conformance therewith, the Petitioner seeks guidance from the Ethics Commission regarding whether, given the facts as represented, he should recuse from participation in discussions and recommendations to the Town Council on matters concerning the rental policy for the Town Beach cabanas.

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 a public official has reason to believe or expect that he, any person with 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).  The Code of Ethics also 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 business by which he is employed or which he represents.  Section 36-14-5(d).

However, section 36-14-7(b) of the Code of Ethics, often 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, any person within his family, 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 of 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 applied the class exception in a variety of circumstances involving public officials.  See, e.g., A.O. 2005-22 (applying the class exception and opining that an Exeter Town Council member could participate in a proposed tax freeze ordinance for all property owners aged 65 and over, notwithstanding that his spouse was over 65 and could benefit from the tax freeze, because 250 to 300 other property owners would be similarly impacted by the ordinance).

However, in prior advisory opinions issued by the Ethics Commission involving situations where it was unclear from the onset whether and how a petitioner or his family member might be impacted by certain matters in which the petitioner sought to participate, the class exception was not applied.  For example, in Advisory Opinion 2021-14, the Ethics Commission opined that the Solicitor for the Town of Middletown was prohibited by the Code of Ethics from participating in Middletown Town Council discussions regarding the proposed revision of an ordinance relating to short-term residential leases, given that the petitioner and his spouse owned property regulated by said ordinance.  Although the petitioner was not a member of the Middletown Town Council, he was a Solicitor and a public official and, as such, his advice on various matters to the Middletown Town Council constituted “official activity” as that term is used in the Code of Ethics.  Because it was unclear at the onset whether and how the actions of the Middletown Town Council, in response to the advice of the petitioner in his capacity as Middletown Solicitor, might financially impact the petitioner and his spouse as owners of a short-term rental property, the class exception was deemed inapplicable and the petitioner was required to recuse from participating in discussing or advising the Middletown Town Council relative to the proposed revision of the subject ordinance.  See also A.O. 2018-23 (opining that a member of the Portsmouth Town Council could not participate in the Town Council’s discussions and voting relative to mitigating the negative effects caused by the operation of a Town-supported wind turbine on neighboring homes, given that the petitioner was one of the affected residents and it was unclear at the onset of the Town Council’s discussions how any resolution to the noise and shadow flicker problem would impact the petitioner); A.O. 2003-58 (opining that the Director of Public Works in the Town of Warren could not participate in contract negotiations with the Steelworkers Union since it was unclear from the onset of negotiations how the contract would affect his daughter, who was a member of the Steelworkers Union).  

Here, although the Petitioner is not a member of the Town Council, he chairs the Recreation Advisory Board as an appointee of the Town Council and, as such, is tasked with advising the Town Council on the rental policy for the Town Beach cabanas.  Because it is unclear whether and how the Recreation Advisory Board’s discussions and ultimate recommendations to the Town Council might financially impact the Petitioner’s spouse as a current cabana renter, it is the opinion of the Ethics Commission that the class exception is inapplicable here and the Petitioner must recuse from participating in the Recreation Advisory Board’s discussions and recommendations to the Town Council relative to this matter.  Recusal shall be consistent with 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)

Related Advisory Opinions :  
A.O. 2021-14 
A.O. 2018-23 
A.O. 2005-22 
A.O. 2003-58

Keywords:      
Class Exception