Advisory Opinion No. 98-84

Re: The Honorable Joseph M. Polisena

A. QUESTION PRESENTED

The Petitioner, a legislator serving as a State Senator, a state elected position, requests an advisory opinion as to whether he may sponsor legislation creating a Slack’s Reservoir Preservation and Recreation District with limited taxing authority given that he owns property abutting the would-be district.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving as a State Senator, a state elected position, may not sponsor legislation creating a Slack’s Reservoir Preservation and Recreation District with limited taxing authority given that he owns abutting property. It is reasonably foreseeable that the creation of such a district would have a financial impact upon the valuation of the Petitioner’s property, thus constituting a substantial conflict of interest under the Code of Ethics. In the event that similar legislation comes before him as a member of the Senate, the Petitioner should recuse himself from participation and votes.

C. DISCUSSION

1. Facts

The Petitioner, a State Senator, advises that he introduced legislation proposing the creation of a Slack’s Reservoir Preservation and Recreation District. The proposed district would be comprised of property abutting the Slack’s Reservoir, located in the towns of Johnston and Smithfield, and would possess limited taxing authority as a mechanism to provide revenue to repair and maintain the reservoir’s dam. The Slack’s Reservoir Association, Inc., a non-profit voluntary association of abutting residents, owns the reservoir. The Petitioner’s home abuts the reservoir and he also is a member of the Association. He represents that he requested that the Senate take no further action on the bill due to opposition by the Smithfield Town Council. However, he seeks guidance as to whether he may sponsor similar legislation in the future given his ownership of abutting property.

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 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. R.I. Gen. Laws § 36-14-5(a). A public official has an interest in substantial conflict with his official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). Further, he may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, or an employer. See R.I. Gen. Laws § 36-14-5(d).

The Commission previously has held that the Code of Ethics prohibited a state legislator from introducing legislation that impacted his/her employer’s interests. See e.g., A.O. 97-57 (concluding that a state representative may not introduce legislation regarding funding for public libraries given his employment by a public library). Additionally, in prior advisory opinions the Commission has concluded that public officials should not participate and vote on matters where their or their family members' property interests as abutters were impacted since they would have a direct financial interest. See e.g., A.O. 98-47, A.O. 97-76, A.O. 92-24, A.O. 90-85. Applying the same rules here, the Petitioner may not sponsor legislation that would directly affect his property interests.

The Petitioner has a direct interest in legislation proposing the creation of a reservoir district based upon his ownership of abutting property. It is reasonably foreseeable that the creation of a district with limited taxing authority would have a financial impact upon the valuation of the Petitioner’s property and/or his taxes. Therefore, his sponsorship of legislation of this type presents a substantial conflict of interest under the Code. Additionally, whenever a matter comes before the Senate involving similar proposals, or which would otherwise affect his property interests, the Petitioner should (a) notify the Senate, in writing, of the nature of his interest in the matter at issue; and (b) recuse himself from any votes or discussions relating to the matter. Notice of recusal also should be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-1

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

98-47

97-76

97-63

97-51

95-83

94-42

92-24

90-85

Keywords:

Property interest