Advisory Opinion No. 2009-42

Rhode Island Ethics Commission

Advisory Opinion No. 2009-42

Re: Donato Andre D’Andrea, Esq.

QUESTION PRESENTED

The Petitioner, Town Solicitor for the Town of Portsmouth, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited from advising the Town regarding the Town’s consideration of the installation of sewage or some other form of community treatment for wastewater that may affect approximately 4,000 lots, given that he owns one of the lots that may be impacted by Town action.

RESPONSE

It is the opinion of the Ethics Commission that the Petitioner, Town Solicitor for the Town of Portsmouth, a municipal appointed position, is not prohibited from advising the Town regarding the Town’s consideration of the installation of sewage or some other form of community treatment for wastewater that may affect approximately 4,000 lots, notwithstanding that he owns one of the lots that may be impacted by Town action, given that the Petitioner is one of a significant and definable class of persons who will be similarly impacted by the Town’s action.

The Petitioner is the Solicitor for the Town of Portsmouth (“Town”).  He represents that, while he is not a resident of Portsmouth, he owns real property in Portsmouth that has a building on it. He states that currently, an issue is coming before the Town regarding whether a section of the Town may be considered for installation of sewage or for some other sort of community treatment of wastewater.  This issue is being driven by problems with storm water discharge that appears to be polluting the Sakonnet River and also by the scheduled outlawing of cesspools.  Specifically, the Petitioner states that the Rhode Island Department of Environmental Management (“DEM”) is pushing the Town to install sewers for the most populated areas of the Town as it has found that storm drains are polluting waters.

The Petitioner states that if the Town implements some new wastewater treatment plan, there are two basic options for the affected parts of the Town: either sewer systems will be installed in specific areas or community treatment centers will be constructed in the areas that have no current wastewater outflow.  He further states that another possibility would be the implementation of some combination of sewer systems and community treatment centers. 

The Petitioner represents that if a sewer system is installed in any particular area, what would likely occur is that after individual sewer connections were made, property owners would incur a betterment assessment, based on the running footage of frontage from the sewer main line to connect to the individual residence; accordingly, the betterment fee assessed to individual property owners could vary.  Property owners would then have a set period of time in which to pay off the fee assessed for the betterment.  The Petitioner states that another option that has been generally proposed would be for the Town as a whole to finance the fees, with all residents paying off the total debt through taxes.

The Petitioner represents that the Town Planner estimates that approximately 4,000 lots stand to be impacted, whichever option the Town chooses to go with.  The Petitioner further states that the Town Planner estimates there are a total of approximately 7,300 lots in the municipality, and thus, the total percentage of impacted lots represents over 50% of the total lots within the municipality.  Given this set of facts, the Petitioner requests an advisory opinion as to whether he is prohibited from rendering legal advice to the various departments and officials in the Town regarding the Town’s potential installation of sewage or any other wastewater treatment options, given that he owns real property in the affected area of the municipality.

Under the Code of Ethics, a public official 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.   See 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.  See R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-7001.  Section 36-14-5(d) further prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, business associate(s), or any person within his family. 

Section 36-14-7(b) of the Code, sometimes referred to as the "class exception," states that a public official will not have an interest which is in substantial conflict with his official duties if any benefit or detriment accrues to him “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 or lesser 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 Commission will determine whether a public official belongs to a group or to a sufficiently "significant and definable" class within that group, so as to justify an exception to what is otherwise a clear prohibition, by considering the totality of the circumstances.  See, e.g., A.O. 2008-16.  Among the important factors considered are: (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 id.

At the outset, it would appear that the significant and definable class at issue consists of all property owners in the municipality who stand to be impacted by any installation of sewage or other wastewater treatment, at this time an estimated 4,000 lots.  The Petitioner represents that while assessing each property owner an individual betterment is one possible long-term outcome, it is also possible that another scenario would be that all residents of the town would share the burden of financing the improvements through taxes; if that were to be the case, the class would consist of all residents of the municipality. 

Here, the action contemplated by the Petitioner is the rendering of legal advice, in his role as Solicitor, to various officials and departments within the Town.  The Petitioner is not empowered to vote as a member of the Town Council or any other decision-making authority in the municipality. 

As to the nature and degree of foreseeable impact upon the class and its members as a result of the official’s action, given that the final outcome of what the Town might do to address its wastewater management situation is uncertain, the resulting impact on any individual member of the class is, at this time, uncertain as well.  However, as the Petitioner is not himself empowered to vote on anything, the resulting impact of his official action on class members is one step removed, at least, from any direct financial impact class members may ultimately experience.   

It is the opinion of this Commission that, given that the class at issue exists either of the approximately 4,000 property owners who may be subject to sewage or some other form of community wastewater improvement by the Town, or consists of the larger class of all of the residents of the municipality who would bear the burden of the costs of such improvements if a tax were levied upon them to finance the improvements, we find either class to be significant and definable.  Furthermore, given the advisory nature of this Petitioner’s role as Solicitor in the provision of legal advice that the Town Counsel or other Town officials and entities may choose to accept or reject, we find that his official actions will not have an immediate and direct impact on the Petitioner or other members of the class. 

Accordingly, based both on a finding that the Petitioner will be impacted, if at all, to no greater or lesser extent than other similarly situated property owners in the municipality, and based on the advisory nature of the Petitioner’s role as Solicitor, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from advising the Town, in his role as Solicitor, regarding the installation of sewage or some other sort of community treatment of wastewater, pursuant to the application of R.I. Gen. Laws § 36-14-7(b).

However, the Petitioner is strongly cautioned that as matters regarding this issue progress and evolve before the Town, if the facts of his circumstances change such that he finds himself to be a member of a smaller or different subclass of individuals likely to be financially impacted by Town action, or if it appears that he will be financially impacted to a lesser or greater extent than other members of the class, he should either recuse in accordance with R.I. Gen. Laws § 36-14-6 or request further advice from this Commission.  

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 :

A.O. 2008-16

Keywords :

Class exception