Advisory Opinion No. 95-101

Re: John C. Levanti, Esq.

A. QUESTION PRESENTED

Whether John C. Levanti, the Solicitor for the Town of Westerly, may advise the Town as to matters relating to the regulation of refuse where he utilizes trash receptacles for the rental properties he owns in Westerly?

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit Mr. Levanti, an owner of apartment buildings in Westerly which utilize trash receptacles, from advising the Town as to matters relating to the regulation of refuse in Westerly.

C. DISCUSSION

1. Facts

The Town of Westerly recently enacted a controversial ordinance regulating solid waste which, among other things, requires individuals whose trash is transported to Westerly's land fill to purchase special trash bags from the Town and prohibits trash haulers from collecting any waste not stored in the approved bags. During the Town Council's proceedings addressing this ordinance, the Petitioner, at the request of Town Councilor Patricia Douglas,(1) recused himself from matters relating to this ordinance since he owned rental properties which utilized trash receptacles (otherwise known as "dumpsters").(2) After the Westerly Town Council passed the solid waste ordinance, a group of solid waste haulers who do business in Westerly filed an action in Superior Court seeking to enjoin the Town from enforcing the ordinance.

2. Analysis

At issue in this advisory request is whether the Petitioner, as Town Solicitor, may advise the Town as to matters relating to a local trash ordinance where he, in his personal capacity, operates rental properties which utilize trash receptacles. Under the Code of Ethics, the Petitioner, as a public official, may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(3) Pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is also prohibited from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, any business associate, or any business which he represents or employs him.

After considering his request, we conclude that the Petitioner will not violate the Code of Ethics if he advises the Town on matters relating to the local trash ordinance. This conclusion is based on the Petitioner's representation that the ordinance enacted by the Town applies to all municipal waste generated in Westerly whether it be in single-family dwellings or apartment buildings. Given this broad application, any interest the Petitioner may have as an owner of apartment buildings which utilize dumpsters is not an interest which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-7(b).(4) Accordingly, the Petitioner need not recuse himself from matters relating to the ordinance at issue.

Footnotes

(1) Patricia A. Douglas, the Town Councilor who requested that the Petitioner recuse himself, submitted a letter to the Commission detailing the reasons why she believed the Petitioner had an impermissible conflict of interest. In her letter, Ms. Douglas indicated that she was primarily concerned about the Petitioner's participation in discussions as to whether multi-family dwellings would be considered commercial or residential (thereby falling within the parameters of the ordinance). During the Commission's meeting on September 13, 1995, the Petitioner indicated that, since the ordinance now applies to multi-family dwellings, this concern is no longer relevant.

(2) The Petitioner owns three apartment buildings in partnership. The Petitioner is also the sole owner of one other apartment building and one single-family dwelling.

(3) Under R.I. Gen. Laws § 36-14-7(a), the petitioner will have an interest which is in substantial conflict with the proper discharge of his duties in the public interest if he has reason to believe or expect that he, a business associate, or his business will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.

(4) R.I. Gen. Laws § 36-14-7(b) provides that a person subject to the Code will not have an interest which is in substantial conflict with the proper discharge of his duties in the public interest if the benefit which accrues to him (or to a business which employs him or which he represents) to no greater extent than any other similarly situated member of the business or of the significant and definable class of persons within the business.

Keywords

Financial Interest

Class Exception