Advisory Opinion No. 2005-39 Re: Bert W. Anger QUESTION PRESENTED: The petitioner, Chairman of the Board of Directors for the Bristol County Water Authority (“BCWA”), a municipal appointed position, requests an advisory opinion as to whether he may participate and vote on a Discount Program which permits persons over the age of 65 to receive a discount off of water rates otherwise charged to residential customers, given that he could immediately benefit if the Program is extended. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chairman of the Board of Directors for the BCWA, a municipal appointed position, may participate and vote on a Discount Program which permits persons over the age of 65 to receive a discount off of water rates otherwise charged to residential customers, given that he is 65 years of age and that he could immediately benefit if the Program is extended. In accordance with Section 7(b) of the Code of Ethics, the petitioner would be affected to no greater or lesser extent than the significant and definable class of all persons aged 65 or over in the Bristol County community. 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 represents that the BCWA is a public agency which provides drinking water to the people in Bristol County which includes the Towns of Barrington, Bristol and Warren. The petitioner represents that the estimated population served is 60,000. He also informs that there are currently 16,432 water customer accounts in the area, 13,977 of which consist of residential users. Of the residential users, 3,117 accounts are currently participating in the Discount Program. The petitioner advises that the Discount Program permits those persons over the age of 65 to receive a discount off of rates otherwise charged to residential customers. For the purposes of this advisory opinion, the Commission assumes the accuracy of these representations. The petitioner further advises that the current Board of Directors consists of nine members, seven of whom are over the age of 65. He informs that the Board is expected to vote on whether to eliminate or to extend the Discount Program and, under BCWA’s Enabling Legislation, a supermajority vote of seven out of the nine Board members is required for action relating to the Discount Program. The petitioner seeks guidance from the Commission as to whether or not the supermajority vote would violate the Code of Ethics. In a recent advisory opinion, the Commission applied the 7(b) class exception to allow an Exeter Town Council member to participate and vote on a proposed tax freeze ordinance that would benefit property owners aged 65 years and over, notwithstanding the fact that the petitioner could immediately benefit from the ordinance if passed. See A.O. 2005-22. Similarly, in Advisory Opinions 2002-10 and 2002-11, the Commission also 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. The Commission had also 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. 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). In the instant matter, the Discount Program would affect all residential water customers aged 65 and over, numbering approximately 3,117 accounts. Consistent with past opinions, the present circumstances fall within the 7(b) exception. Therefore, the Commission concludes that the petitioner and other board members aged 65 and over may participate and vote on the Discount Program since they would be affected to no greater or lesser extent than any of the other 3,117 water customers benefiting from the program, a significant and definable class. Code Citations: 36-14-5(a) 36-14-7(a) 36-14-7(b) Related Advisory Opinions: 2005-22 2002-11 2002-10 Keywords: Class exception Property interest