Advisory Opinion No. 2002-27

Re: William J. Devanney D.D.S.

QUESTION PRESENTED

The petitioner, an Exeter Town Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate and vote on a proposed tax freeze ordinance, given that he would benefit from the proposal as a property owner aged 65 or over.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Exeter Town Councilor, a municipal elected position, may participate and vote on a proposed tax freeze ordinance that would benefit property owners aged 65 and over, notwithstanding the fact that he is a property owner aged 65 or over. In accordance with Section 7(b) of the Code of Ethics, the petitioner would be affected by the proposal 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, the petitioner 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.” R.I. Gen. Laws § 36-14-7(b).

The petitioner advises that the Town of Exeter Town Council is considering a proposed tax freeze ordinance that would benefit property owners aged 65 and over. He represents that there are approximately 2,000 residential homes in the Town of Exeter, and that he is one of approximately 350 homeowners who would benefit from the tax freeze. For the purposes of this advisory opinion, the Commission assumes the accuracy of these representations.

The Commission has recently applied the 7(b) class exception to allow town councilors over the age of 65 to participate and vote on an elderly tax freeze ordinance. In Advisory Opinions 2002-10 and 2002-11, the Commission applied section 7(b) to determine that town councilors over age 65 could participate and vote on a proposed Town of East Greenwich tax freeze ordinance that would affect 660 out of 4,000 East Greenwich homeowners. Prior to those advisory opinions, the Commission had applied the 7(b) class exception to other matters involving large groups, such as all members of a community, all hunters, all state pension recipients or all teachers within a school system. In the instant matter, a tax exemption that would affect all property owners aged 65 and over, here numbering approximately 350 persons, also falls within that exception. Compare A.O. 99-82 (declining to apply the class exception to a proposed elderly and disabled tax freeze ordinance where only 192 properties would be affected).

Therefore, the Commission concludes that the petitioner may participate and/or vote on the proposed tax freeze ordinance since he would be affected to no greater or lesser extent than all the other members of this significant and definable class. However, the petitioner must prepare and file a notice of recusal, indicating the reasons why, despite his interest, he is able to vote objectively, fairly, and in the public interest on the matter at issue. Notice of recusal should be filed both with the Ethics Commission and the Town of Exeter in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

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

Related Advisory Opinions:

2002-11
2002-10
99-82
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