Advisory Opinion No. 2002-12

Re: Timothy A. Williamson, Esq.

QUESTION PRESENTED

The West Warwick Town Solicitor requests an advisory opinion on behalf of the West Warwick Town Council, municipal elected positions, as to whether Council members aged 65 and over may vote on municipal ordinances relating to a tax exemption for the elderly where such members would be eligible for the tax exemption.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that members of the West Warwick Town Council, municipal elected positions, who are aged 65 and over may participate and vote on municipal ordinances relating to tax exemptions for the elderly, notwithstanding the fact that they would be eligible for such exemption. In accordance with Section 7(b) of the Code of Ethics, Councilors aged 65 and over would be affected by said exemption to no greater or lesser extent than the significant and definable class of all persons aged 65 or over who own property within the Town.

Under the Code of Ethics, a public official may not participate or vote in any matters in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he, a business associate, or a business by which he is employed or represents will derive a direct monetary gain by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). However, he will not have an interest in substantial conflict with his public duties if any benefit accrues to him, his business associate, or any business by which he is employed or 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.” See R.I. Gen. Laws § 36-14-7(b).

The West Warwick Town Solicitor advises that the West Warwick Town Council is considering an ordinance that would provide a tax exemption for those individuals age 65 and over. He represents that two members of the Town Council are age 65 years or older. According to the 1990 census data, there are approximately 29,268 residents in the Town, including 4,000 residents over age 65. The Tax Assessor’s Office represents that there presently are 1,859 individuals over age 65 who own property in the municipality.

The Commission previously has applied the 7(b) class exception where the matter at issue concerned large groups, such as all members of a community, all hunters, all state pension recipients or all teachers within a school system. A tax exemption that would affect all property owners aged 65 and over, here numbering 1,859 persons, clearly falls within that exception. Therefore, the Commission concludes that the Councilors eligible to receive the tax exemption may participate and/or vote on the proposed ordinance since they would be affected to no greater or lesser extent than all the other members of this significant and definable class. However, the affected Councilors must file a Section 6 recusal notice, indicating the reasons why, despite their interest, they are able to vote objectively, fairly, and in the public interest on the matter at issue. Notices of recusal should be filed both with the Ethics Commission and the Town of West Warwick in accordance with R.I. Gen Law § 36-14-6.

Code Citations:

36-14-5(a)
36-14-7(a)
36-14-6

Related Advisory Opinions:

98-101
98-51
98-41
98-40
97-79
96-66
95-101
95-35
94-61
93-65
91-97

Keywords:

Class exception
Property interest