Advisory Opinion No. 98-14

Re: The Honorable James M. Kelso

A. QUESTION PRESENTED

Whether the Petitioner, a state Representative, a state elected position, must recuse himself from voting on legislation which would lower the legal alcohol limit from 1.0 to 0.8 given that he owns a restaurant which serves alcohol.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a state representative, a state elected position, may vote on legislation relating to the legal alcohol limit because the Petitioner's business interests will not be affected to any greater or lesser extent than all other members of the restaurant, bar and hospitality industry in Rhode Island. However, the Petitioner must file a section 6 notice with the Commission and the House which details his business and financial interests, the nature of the potential conflict, and the reasons why, despite the potential conflict, he is able to vote objectively, fairly, and in the public interest.

C. DISCUSSION

1. Facts

The Petitioner is a state Representative, a state elected official under the Code of Ethics. The Petitioner also owns a restaurant which serves liquor. The Petitioner has indicated that legislation will be coming before the House of Representatives which would lower the legal alcohol limit from 1.0 to 0.8. (It is assumed, although to date I have unable to verify, that the legislation will change the drunk driving statute, R.I. Gen. Laws § 31-27-2, which provides the legal alcohol limit applied in drunk driving cases.)

2. Analysis

The Rhode Island Code of Ethics holds all public officials to the "highest standards of ethical conduct" and requires that public officials avoid even the "appearance of impropriety." R.I. Gen. Laws § 36-14-1. Under the Code, the Petitioner may not participate or vote in any matters in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties. R.I. Gen. Laws § 36-14-5(a). Further, he may not use his public office to obtain financial gain for himself. R.I. Gen. Laws §§ 36-14-5(d) and 36-14-7(a).

However, under General Commission Advisory No. 13, the Commission determined that a legislator may participate and/or vote on legislation which affects the legislator's business when the legislation would not affect the legislator's business to any "greater or lesser extent than the interests of all other members of the affected group or profession to which the legislator . . . belongs." The Commission cautioned that "the Commission does not believe that such exception should apply in instances where the group affected is a distinct and significant enough subset of the larger group, and where a significant portion of the legislator's . . . income (more than 25%) is derived from activities as part of such subgroup." (emphasis added.)

Prior advisory opinions relating to this issue have been inconsistent. Generally, the Commission has considered whether the proposed legislation involved an entire industry and whether or not the legislator would be or could be affected financially by the legislation. In A.O. 96-71, the Commission determined that a legislator could participate and vote on legislation regulating the sale of insurance by banks even though the legislator requesting the opinion was an insurance agent. The Commission provided that the legislator must file a section 6 recusal notice explaining his interests and the nature of the potential conflict and noting why, despite the apparent conflict, he was able to vote objectively and fairly on the issue. The Commission based its opinion on the importance of the legislation to the public consumers and the fact that the legislator could not reasonably expect any direct monetary gain or loss by reason of his participation. Additionally, in A.O. 96-24, the Commission determined that a Newport Zoning Board member could participate in matters affecting the bed and breakfast industry even though the Zoning Board member owned a hotel.

In contrast, in A.O.'s 95-54 and 95-56, the Commission found that legislators, a retired teacher and a working teacher, could not participate in negotiations relating to the pension benefits for state workers and teachers except whether the particular matter being discussed would in no way affect the legislators' personal interests. In those cases, the Commission declined to apply the 7(b) exception "given that it is impossible to determine which groups will be significant and definable during the negotiations and given that the legislator, particularly a member of the leadership, may play a role in defining the groups to be effected by the pension legislation."

In this case, the legislation would affect the entire restaurant, bar and hospitality industry in Rhode Island to the same extent. Additionally, the legislation targets individuals who consume alcohol rather than the restaurants and bars which serve alcohol. Thus, under the existing opinions and policy, the Petitioner would not violate the Code by voting on legislation relating to the legal alcohol limit provided he complies with the section 6 notice requirements.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

96-71

96-24

95-54

95-56

GCA 13

Keywords:

Class Exception