Advisory Opinion No. 2005-13 Re: Gary A. Girard QUESTION PRESENTED: The petitioner, Chair of the Jamestown Planning Commission, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on changes to the Jamestown Zoning Ordinance related to the protection of critical lands containing freshwater wetlands, high ground water table, and/or shallow impervious layer, given that his property is located within the overlay district containing these critical lands. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chair of the Jamestown Planning Commission, a municipal appointed position, may participate in and vote on changes to the Jamestown Zoning Ordinance related to the protection of critical lands containing freshwater wetlands, high ground water table, and/or shallow impervious layer, notwithstanding that his property is located within the overlay district containing these lands. The petitioner informs that the Jamestown Town Council requested that the Jamestown Planning Commission revise and recommend changes to the Jamestown Zoning Ordinance related to the protection of critical lands in Jamestown. The petitioner represents that the Jamestown Planning Commission will submit its proposed changes to the Town Council for its consideration. The petitioner informs that he is Chair of the Jamestown Planning Commission and was last appointed to this position in 2001 for a four-year term. The petitioner represents that the proposed changes to the Jamestown Zoning Ordinance are in response to concerns over both new technologies that enable construction on these critical lands, and new state regulations on water run-off also applicable to these lands. The petitioner informs that the proposed changes to the Jamestown Zoning Ordinance are an effort to protect these lands despite these recent developments. The petitioner represents that such safeguards will limit the harmful impact of water displacement on lands possessing high water levels. The petitioner also advises that these lands are important to protect because of their significance in maintaining the quality of the Island’s drinking water. Under the Code of Ethics, the petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or a family member. R.I. Gen. Laws § 36-14-5(d). Furthermore, he 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). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-7001. In the instant matter, it appears to be reasonably foreseeable that the petitioner’s property, which is located within the overlay district, will be impacted by the proposed changes to the Jamestown Zoning Ordinance. Under section 7(b)’s “class exception,” a substantial conflict of interest pursuant to section 5(a) does not exist if a public official receives a financial benefit or detriment “as a member of a business, profession, occupation or group . . . to no greater extent than any other similarly situated member of the business, profession, occupation or group[.]” R.I. Gen. Laws § 36-14-7(b). See, e.g., A.O. 98-40 (member of the State House of Representatives and the spouse of a dentist may participate and vote on legislation relating to the practice of dentistry, since legislation at issue affects all dentists within Rhode Island to same extent). Here, although the Jamestown Zoning Ordinance applies to a “group” (all of the residents of Jamestown), the proposed changes to the Ordinance will primarily affect only a subclass of that group (Jamestown residents who live in the overlay district). Accordingly, section 7(b) will only apply if this subclass is “significant and definable,” and if the financial impact of the amendment affects the petitioner to no greater extent than it does other residents in the overlay district. In determining whether a proposed subclass is sufficiently “significant and definable” to warrant this exception, the Commission considers the totality of the circumstances. In past advisory opinions, this has included the following: (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. See, e.g., A.O. 2002-27 (significant and definable class constituted homeowners age 65 and over out of the group of all residential homeowners in Exeter). Here, the petitioner informs that the official action contemplated by the Jamestown Planning Commission includes recommendations and revisions to the Jamestown Zoning Ordinance related to the protection of critical lands containing freshwater wetlands, high ground water table, and/or shallow impervious layer. The petitioner informs that these changes will affect those residents of Jamestown who live in the overlay district containing these lands. The petitioner represents that this district comprises the entire Jamestown Shores and the North End of the Island and that approximately 45-50% of the Island’s population lives in this area. The petitioner further informs that the proposed changes will place new requirements upon Jamestown property owners within this area seeking to build on these critical lands. After considering the totality of the circumstances and the petitioner’s representations, the Commission opines that section 7(b)’s exception applies here because the Jamestown residents living in the overlay district are sufficiently significant and definable, and the petitioner will be impacted by the amendments to no greater extent than are these other residents. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner may participate in or vote on changes to the Jamestown Zoning Ordinance related to the protection of these critical lands. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-7(b) Regulation 36-14-7001 Related Advisory Opinions: 2002-27 98-40 Keywords: Class Exception