Advisory Opinion No. 2012-5

Re: David Holmes

QUESTION PRESENTED

The Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on the Tiverton Planning Board’s consideration of proposed zoning changes in the Village Commercial District, given his public comments on the matter prior to his appointment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, may participate in and vote on the Planning Board’s consideration of proposed zoning changes to the Village Commercial District, notwithstanding his public comments on the matter prior to his appointment.

The Petitioner is a member of the Tiverton Planning Board (“Planning Board”), having been appointed on June 27, 2011. He informs that, prior to his appointment, he participated in public workshops and some private discussion groups with other Tiverton residents regarding possible zoning changes to the Village Commercial District (“VCD”), which is commonly known as the Tiverton Four Corners area. He states that such meetings were informational only and his statements exclusively occurred prior to his Planning Board appointment. However, he informs that some business owners in the VCD area opposed his appointment to the Planning Board because of his previous public comments.

The Petitioner states that the Planning Board is expected to start reviewing proposed zoning changes to the VCD that were previously tabled. He represents that state law requires Tiverton to review the VCD zoning regulations to determine if they are in conformity with Tiverton’s Comprehensive Plan. The proposed VCD zoning changes could include: incorporating existing non-conforming uses, enlarging the zone to include more parcels, and reevaluating the list of permitted and special uses. He advises that the Planning Board’s action will consist of reviewing the existing ordinances, discussing amendments, and voting on the changes. He informs that any zoning changes recommended by the Planning Board must be approved by the Town Council. He states that he will approach this process with an open mind towards all changes and amendments to the VCD zone.

The Petitioner represents that he does not have any personal financial interests in the VCD; he does not reside in the VCD, his property does not abut the VCD, and none of his family members have a financial interest in any of the businesses or properties in the VCD. However, in light of the previous opposition to his appointment, the Petitioner seeks guidance as to whether he may participate in the Planning Board’s consideration of zoning changes to the VCD, given his public comments on the matter prior to his appointment.

Under the Code of Ethics, 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. R.I. Gen. Laws § 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). Additionally, the Code 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).

In the present matter, the facts as represented by the Petitioner do not require recusal because he is not an abutter to the VCD and neither he nor any of his family members have a financial interest in the VCD. Compare A.O. 2002-30 (opining that a member of the Jamestown Town Council could participate in the Council’s determination of a location of a highway garage, when her property was 1000 feet away, because the petitioner was not an abutter, and as such, there was no presumption of a financial impact) and A.O. 2008-4 (opining that a member of the Tiverton Planning Board was prohibited from participating in the Planning Board’s review of the Tiverton Yacht Club’s request to change the Zoning Ordinance because, as a shareholder in the Yacht Club, it was reasonably foreseeable that the petitioner would be financially impacted by the Planning Board’s decision).

Here, the Petitioner previously made public comments regarding changes to Tiverton’s zoning regulations, specifically regarding the VCD. Now, as a member of the Planning Board, he asks if he may participate in the review of the zoning regulations for the VCD, which is a quasi-legislative activity that affects the Town as a whole and is required by state law to achieve conformity with Tiverton’s Comprehensive Plan. While the Petitioner’s prior comments may indicate certain pre-conceived opinions regarding the best and appropriate uses of the VCD, such statements do not trigger a recusal requirement under the Code of Ethics. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner may participate in the Planning Board’s consideration of proposed zoning changes to the Village Commercial District, notwithstanding his public comments on the matter prior to his appointment.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2008-4

A.O. 2003-13

A.O. 2002-30

Keywords:

Bias

Recusal