Advisory Opinion No. 99-98

Re: William J. Devanney, DDS

QUESTION PRESENTED

The petitioner, an Exeter Town Councilor, a municipal elected official, requests an advisory opinion as to whether he may vote on an ordinance to increase an existing elderly tax exemption given that the petitioner may benefit from the tax exemption when he turns 65 next year.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Exeter Town Councilor, a municipal elected position, may participate or vote on an ordinance to increase the Town’s elderly tax exemption because the petitioner, who is not yet sixty-five years of age is ineligible for its benefit.

The Code of Ethics prohibits from taking any official action that is likely to have a direct financial or monetary impact on, among others, him/herself or a family member, or from having an interest which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). A substantial conflict of interest occurs if as official has reason to believe or expect that he or a family member would derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). An official has reason to believe or expect a conflict of interest exist if it is "reasonably foreseeable" that either he or a family member would be impacted financially by the action. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001.

In this matter, the petitioner is currently sixty-four years of age. The tax exemption at issue applies to persons of at least 65 years of age. Since the petitioner is not currently 65 years old, he will not receive a financial benefit by virtue of his official action. Because of the various procedures that must take place before the ordinance would become effective, including approval by the Town Council and subsequent passage by the General Assembly, it is uncertain when the new ordinance will take effect. Therefore, the petitioner may participate in the discussion and vote on the elderly tax exemption at this time.

Code Citations:

36-14-5(a)

36-14-7(a)

36-14-7(b)

36-14-7003

Related Advisory Opinions:

99-11

99-82

98-101

Related Case Law:

Celona v. Rhode Island Ethics Commission, 544 A.2d 582, 586 (R.I. 1988),

Keywords:

Class Exception

Financial Benefit

Public Forum Exception