Advisory Opinion No. 2012-29

Re: Stephen J. Hughes

QUESTION PRESENTED

The Petitioner, a member and Chairman of the Tiverton Planning Board, a municipal appointed position, requests an advisory opinion as to whether the Code of Ethics prohibits him from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club, given that he is an officer of the Tiverton Yacht Club.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member and Chairman of the Tiverton Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club, given that he is an officer of the Tiverton Yacht Club.

The Petitioner is a member and the Chairman of the Tiverton Planning Board (“Planning Board”). He informs that he is an officer of the Tiverton Yacht Club (“Yacht Club”). He states that he is also a member of the Yacht Club’s Board of Directors by virtue of his status as an officer. He represents that the Yacht Club is a small, non-profit organization located on the Sakonnet River that provides its members with various social activities, swim lessons, a full sailing program and a twenty-one slip marina, with dingy docks and storage racks and moorings in the Tiverton basin.

The Petitioner informs that the Yacht Club’s clubhouse burned down in 2003. He states that as part of the rebuilding process, the Yacht Club has applied to the Tiverton Town Council for an amendment to Article VI, section 7 of the Tiverton Zoning Ordinance, proposing to add the following language:

d. The enlargement in size and/or capacity of a Department of Environmental Management approved individual sewage disposal system (ISDS) in the exclusion area of the Sakonnet River, in subsection c (that is Type 3 and 5 waters as determined by Coastal Resources Management Council or its successor agency) shall not be an expansion or enlargement of a Non Conforming Use under Article XIV of this ordinance.

He represents that this zoning change directly impacts the Yacht Club’s ability to rebuild its clubhouse, which was and still is a non-conforming use in that zoning district. He further informs that this zoning change would apply to the Yacht Club as well as approximately forty (40) to fifty (50) other abutters of Type 3 and Type 5 waters. The Petitioner represents that the Tiverton Town Council has referred this matter to the Planning Board for a recommendation.

Cognizant of the Code of Ethics and past advisory opinions concerning the Yacht Club, he seeks advice as to whether he may participate in the Planning Board’s consideration and recommendation to the Town Council of the Yacht Club’s request for a zoning amendment.

Under the Code of Ethics, a public official must recuse himself from participation when his business associate or a person authorized by his business associate, appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 36-14-5002 (“Regulation 5002”); R.I. Gen. Laws § 36-14-5(f). The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a).

A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). The Commission has repeatedly concluded that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2012-9; A.O. 2011-27; A.O. 2010-25; A.O. 2009-29; A.O. 2009-10; A.O. 2008-36; A.O. 2008-35; A.O. 2007-58; A.O. 2007-45; A.O. 2003-4; A.O. 2002-72; A.O. 98-156.

The facts here are substantially similar to Advisory Opinion 2007-58, which was issued to this same Petitioner. At that time, this Petitioner was a member of the Tiverton Planning Board and also a member of the Yacht Club’s Board of Directors. There, the Commission opined that the Petitioner was a business associate of the Yacht Club because he was a member of its Board of Directors and, thus, he was required to recuse from the Planning Board’s review of the proposed amendment to the Zoning Ordinance requested by the Yacht Club.

In the present matter, the Petitioner is still a business associate of the Yacht Club because he is an officer of the Yacht Club. Accordingly, it is the opinion of the Ethics Commission that Regulation 5002 and § 36-14-5(f) require the Petitioner to recuse from the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Yacht Club, given that he is an officer of the Yacht Club. Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation 36-14-5002

Related Advisory Opinions:

A.O. 2012-9

A.O. 2011-27

A.O. 2010-25

A.O. 2009-29

A.O. 2009-10

A.O. 2008-36

A.O. 2008-35

A.O. 2008-11

A.O. 2008-7

A.O. 2007-58

A.O. 2007-45

A.O. 2003-4

Keywords:

Business Associate

Recusal