Advisory Opinion No. 2005-22 Re: Wayne E. Cross 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 which may be available to married couples when the older spouse reaches 65 years of age, given that his spouse is 65 years of age and he could benefit from the ordinance if passed. 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 his spouse is 65 years old and the petitioner could benefit from the ordinance if passed. 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 or those persons who are married to persons aged 65 or over and 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 are 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 or any person within his family 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 or his family member “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 further advises that the tax freeze ordinance may also be available to married couples when the older partner reaches age 65. The petitioner represents that there are approximately 2,200 residential homes in the Town of Exeter, and that he is one of approximately 250 to 300 homeowners who would benefit from the tax freeze. For the purposes of this advisory opinion, the Commission assumes the accuracy of these representations. In past advisory opinions, the Commission has 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. One such advisory opinion, A.O. 2002-27, has facts nearly identical to those represented here, including the same Town of Exeter and Town Council. There, the Commission opined that an Exeter Town Councilor could participate and vote on a tax freeze ordinance where he was one of some 350 Exeter homeowners that could benefit from the ordinance. Similarly, 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 250 to 300, 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. Code Citations: 36-14-5(a) 36-14-7(a) 36-14-7(b) 36-14-6 Related Advisory Opinions: 2002-27 2002-11 2002-10 99-82 98-51 98-41 98-40 Keywords: Class exception Property interest