Advisory Opinion No. 2003-57

Re: The Honorable James C. Sheehan

QUESTION PRESENTED:

The petitioner, a legislator serving as a State Senator, a state elected position, requests an advisory opinion as to whether he may participate in the Senate’s consideration of legislation concerning the state pension plan given that he is a member of the plan.

RESPONSE:

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 participate in the Senate’s consideration of legislation concerning the state pension plan. This opinion is based on and limited by Section 7(b) of the Code which provides that the petitioner may participate in actions as a public official as long as they do not affect him to any greater extent than any other similarly situated member of a significant and definable class.

The petitioner represents that he is a State Senator for Senate District 36. Additionally, he informs that he is employed as a teacher in Rhode Island and is a member of the Rhode Island State Pension Plan. The petitioner informs that legislation is currently before the Senate concerning a proposed contribution increase by pension plan members and a proposed freeze/ceiling in the C.O.L.A. relative to that plan. Finally, the petitioner informs that this legislation will affect all state employees and all teachers in the State of Rhode Island. The petitioner seeks guidance as to whether he may participate and vote on such legislation given that he is a member of the state pension plan.

Under the Code of Ethics, a public official or employee may not have an interest that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have 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 the public official’s activity, to the official, a family member, employer, business associate, or a business that he represents. See R.I. Gen. Laws § 36-14-7(a). However, the Code provides an exception whereby the official will not have an interest in substantial conflict with his public duties if any benefit accrues to him, his business associate, or any business by which he is employed or represents “as a member of a business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” R.I. Gen. Laws § 36-14-7(b).

Finally, a person subject to the Code of Ethics is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d).

Here, the petitioner represents that by reason of his position as a teacher in Rhode Island he is a member of the Rhode Island Pension Plan. Further, he represents that legislation is currently before him as a member of the State Senate that would affect the Rhode Island Pension Plan. Accordingly, the prohibitions contained in Code sections 5(a) and 5(d) are implicated. However, despite the conflict, under the 7(b) class exception the petitioner may participate in the consideration of legislation if his interests would be affected by the legislation to no greater or lesser extent then any other member of a significant and definable group.

Section 36-14-7(b) of the Code, sometimes referred to as the "class exception," states that a public official will not have an interest which is in substantial conflict with his official duties if any benefit or detriment accrues to him “as a member of a business, profession occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater or lesser extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” R.I. Gen. Laws 36-14-7(b).

The Commission will determine whether a proposed class is sufficiently "significant and definable," so as to justify an exception to what is otherwise a clear prohibition, by considering the totality of the circumstances. Among the important factors considered are: (1) the description of the class or subclass; (2) the size of the class; (3) the function or official action being contemplated by the public official; and (4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action.

Here, the proposed class consists of all state employees and all teachers in Rhode Island numbering approximately 30,000. The official action contemplated by a member of this class is the participation and vote on legislation dealing with a proposed contribution increase of pension plan members and a proposed freeze/ceiling in the C.O.L.A. relative to that plan. This official action will affect all state employees and all teachers in the State of Rhode Island equally. The legislation does not affect a subset of state employees or teachers. Considering these circumstances, the Commission finds that application of the 7(b) class exception is warranted and appropriate.

As such, it is the opinion of the Rhode Island Ethics Commission that the petitioner may participate and vote on legislation concerning the state pension plan despite his membership in the plan since his interests are affected to no greater or lesser extent then any other state employee or teacher who is a member of the plan.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

2003-30

2003-29

2002-27

2002-12

2002-11

2002-10

99-55

99-4

Keywords:

Class Exception