Advisory Opinion No. 2016-28 Rhode Island Ethics Commission Advisory Opinion No. 2016-28 Approved: August 16, 2016 Re: Mary Meagher QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she may participate in discussion and voting relative to a proposed ordinance that would require residential landlords in Jamestown to file an emergency contact form with the Town Clerk, given that the Petitioner owns a rental property that would be subject to the proposed ordinance. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, may participate in discussion and voting relative to a proposed ordinance that would require residential landlords in Jamestown to file an emergency contact form with the Town Clerk, notwithstanding that the Petitioner owns a rental property that would be subject to the proposed ordinance. The Petitioner is a member of the Jamestown Town Council (“Town Council”). She informs that at an upcoming meeting the Town Council will consider amending the Town’s Code of Ordinances to require residential landlords within the Town to file an annual registration form with the Town Clerk. The proposed registration form would require disclosure of the identity, mailing address and phone number of the property owner(s), as well as the name, address and telephone number of a property manager or emergency contact who is available to respond to the property within thirty (30) minutes of being contacted by a Town official. As currently proposed, a failure to file the registration accurately and annually would be punishable by a fine of between $50 and $500. The Petitioner states that she is the owner of a residential rental property in Town which would be subject to the ordinance, if passed. She represents that hers is one of approximately five hundred (500) such units. We note that one other member of the five-member Town Council has requested an advisory opinion based on the same circumstances. Given these representations, the Petitioner asks whether she may participate in the Town Council’s consideration of the proposed ordinance. A person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics are implicated the Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. Here, the Petitioner owns a residential rental property that would be subject to the proposed ordinance. Aside from the new filing requirement imposed on the Petitioner, the ordinance (at Sec. 14-107) also seems to contemplate and allow for the imposition of an associated filing fee. Finally, failure to adhere to the ordinance’s requirements would subject the Petitioner to a monetary fine. We believe it is reasonably foreseeable that the Petitioner would be financially impacted by the ordinance. However, the above representations suggest that any financial impact will likely be substantially similar among all of the residential landlords in the Town. Accordingly, we will consider whether the “class exception” applies to this unique set of circumstances. Section 36-14-7(b) of the Code, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of his or her duties in the public interest and of his or her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to him or her or any person within his or her family or any business associate, or any business by which the person is employed or which the person represents, 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 extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group. The Commission has previously applied the class exception in a variety of circumstances involving city/town council members and their real estate holdings. See e.g. A.O. 2014-12 (applying the class exception and permitting a North Kingstown Town Council member to participate in the Town Council’s consideration of proposed comprehensive plan and zoning ordinance amendments relative to the Preserve at Rolling Greens development plan, notwithstanding that the petitioner owned one of 124 residences that received abutters’ notices as a result of ownership interests in the common property of the subdivision); A.O. 2005-22 (applying the class exception and opining that an Exeter Town Council member could participate in a proposed tax freeze ordinance for all property owners aged 65 and over, notwithstanding that his spouse was over 65 and could benefit from the tax freeze, because 250 to 300 other property owners would be similarly impacted by the ordinance). When determining whether any particular circumstance supports and justifies the application of the class exception, the Commission will consider the totality of the circumstances. Among the important factors considered are: 1) the description of the class; 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. In this case, the class consists of the owners of residential rental property in the Town. The Petitioner states that there are approximately 500 residential rental properties in the Town. The proposed ordinance would apply equally to the owners of each of these units, requiring an annual filing and disclosure of contact information, the potential payment of a filing fee, and subjecting such filers to penalties for noncompliance. Considering the totality of the circumstances, it is the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 7(b) of the Code of Ethics. Accordingly, the Petitioner may participate in the Town Council’s consideration of the proposed ordinance. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2015-4 A.O. 2014-12 A.O. 2005-22 Keywords: Class Exception Property Interest