Advisory Opinion No. 99-30

Re: Town of Smithfield Councilman Ronald Manni

QUESTION PRESENTED

The petitioner, a Smithfield Town Councilor, a municipal elected position, requests an advisory opinion as to whether he, as a retired employee who receives pension benefits from a private pension system for retired members of the Town's Police and Fire Departments that is administered by the John Hancock Mutual Life Insurance Company, may participate in public proceedings regarding the future of the police pension fund if he recuses himself from the Council's considerations and votes regarding this issue.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Smithfield Town Councilor, a municipal elected official, may participate in public forums or speak at a Council hearing as a retired employee regarding the future of the pension system if he recuses himself from the Council's considerations and/or votes regarding this issue. Commission Regulation 36-14-7003, the Public Forum Exception, provides that any person may publicly express his or her viewpoint in a public forum on any matter of general public interest or on any matter that directly affects said individual.

A second issue relates to the express language of R.I. Gen. Laws § 36-14-5(e), which indicates that the petitioner would be prohibited from appearing on any matter before the Council (i.e., the public body on which he serves). Section 5(e) appears at odds with the public forum exception referenced above and, to the extent that is the case, we conclude that the public forum exception is the more reasonable rule to apply. In addition, Section 5(e) provides for a hardship exception upon a finding of such by the Commission. Here, the discussions between the Town, the Police Officers' Union and John Hancock, the administrator of the pension fund, concern ways to ensure the future solvency of the fund. Given the petitioner's interest in the fund as a retired employee, we believe that his request to speak on the issue before the Council and in other public forums falls within the hardship exception. See A.O. 97-85 (permitting the Central Falls City Solicitor to testify at a State Liquor Control appeal hearing or at a Central Falls Liquor Board hearing regarding the revocation of a license of a bar located adjacent to his private law offices since the matter fell within the hardship and public forum exceptions). Also, this opinion is based on previous advisory opinions that have permitted public officials to appear before Boards where they have a vested property right notwithstanding the fact an appearance before a particular Board may constitute a conflict of interest. See e.g., A.O. 98-12. However, we caution the petitioner that he should not improperly use his position as a Town Councilor to influence any Town officials or employees. See R.I. Gen. Laws § 36-14-5(d).

Code Citations:

36-14-5(d)

36-14-5(e)

36-14-7003

Related Advisory Opinions:

98-52

98-12

97-85

96-111

96-108

96-75

95-65

Keywords:

Pension benefit

Public forum exception