Advisory Opinion No. 2013-19 Advisory Opinion No. 2013-19 Re: Giorgio S. Gencarelli QUESTION PRESENTED The Petitioner, a member of the Westerly Zoning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Zoning Board’s consideration of Copar Quarries of Westerly, LLC and Westerly Granite Co., Inc.’s appeal of the Westerly Zoning Official’s Cease and Desist Order, given that his former daughter-in-law is an abutter to the quarry under review. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Zoning Board, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of Copar Quarries of Westerly, LLC and Westerly Granite Co., Inc.’s appeal of the Westerly Zoning Official’s Cease and Desist Order, notwithstanding that his former daughter-in-law is an abutter to the quarry under review. The Petitioner is a member of the Westerly Zoning Board of Review (“Zoning Board”). He represents that there are zoning matters related to a quarry in the Bradford section of Westerly, which is operated by Copar Quarries of Westerly, LLC, and owned by Westerly Granite Co., Inc. (“Copar & Westerly Granite”). The Petitioner states that his former daughter-in-law, from whom the Petitioner’s son is divorced, owns and resides in a home that abuts this quarry. He further represents that his two minor grandchildren reside with their mother at this property abutting the quarry. He states that his former daughter-in-law is opposed to the operation of the quarry and is a party to a nuisance action pending against Copar & Westerly Granite in Superior Court. Presently before the Zoning Board is Copar & Westerly Granite’s appeal of the Westerly Zoning Official’s (“Zoning Official”) issuance of a “Notice of Violation and Cease & Desist Order[1],” which found, inter alia, that the use as a quarry was abandoned during an eleven (11) year period when Westerly Granite was not the owner of the property. Westerly Granite sold the quarry property to Mary Lucey in 1999 and later repurchased the property from Ms. Lucey in 2010. In reviewing this appeal, the Zoning Board will determine whether Copar & Westerly Granite have rebutted the presumption of abandonment through the presentation of sufficient evidence of intent not to abandon the use as a quarry during Ms. Lucey’s ownership. R.I. Gen. Laws § 45-24-39(c). Given the fact that his former daughter-in-law and two minor grandchildren live in a house that abuts the quarry, the Petitioner seeks advice as to whether he can participate in the Zoning Board’s consideration of Copar & Westerly Granite’s appeal of the Zoning Official’s decision.[2] Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” prohibits a person subject to the Code of Ethics from participating in any matter as part of his public duties if he “has reason to believe or expect that any person within his [] family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.” Regulation 5004(b)(1). The Code defines “Any person within his or her family” as: any person who is related to any public official or public employee, whether by blood, marriage or adoption, as any of the following: spouse, father, step-father, father-in-law, mother, step-mother, mother-in-law, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, grandfather, step-grandfather, grandfather-in-law, grandmother, step-grandmother, grandmother-in-law, grandson, step-grandson, grandson-in-law, granddaughter, step-granddaughter, granddaughter-in-law, uncle, step-uncle, uncle-in-law, aunt, step-aunt, aunt-in-law, niece, step-niece, niece-in-law, nephew, step-nephew, nephew-in-law, first cousin, step-first cousin and first-cousin-in-law. Regulation 5004(a)(2). In the present matter, the Petitioner’s former daughter-in-law is not a “person within [the Petitioner’s] family” as that term is defined in the Code of Ethics. “Daughter-in-law” is specifically included among Regulation 5004’s list of familial relations. A “daughter-in-law” is defined as “the wife of one’s son.” Black’s Law Dictionary, (9th ed. 2009). Here, the Petitioner’s familial relationship to his former daughter-in-law ended when she and the Petitioner’s son divorced. Furthermore, the Petitioner’s former daughter-in-law is neither a party to nor a participant in the matter before the Zoning Board. The only parties to this appeal are the Town and Copar & Westerly Granite. Although the Zoning Board may receive public comment during its consideration of this appeal, it is not a question of how the quarry operations affect the abutters but, rather, whether there has been a consistent intention to use this property as a quarry. Finally, the Petitioner’s biological grandchildren are “person[s] within [the Petitioner’s] family” pursuant to Regulation 5004. However, the Petitioner’s grandchildren are minors who presently have no ownership in their mother’s home and, thus, are not legal abutters. Accordingly, the Petitioner’s familial relationship with his grandchildren does not trigger the provisions of Regulation 5004 because his grandchildren are not parties or participants in the quarry matter and will not be directly financially impacted by the Zoning Board’s decision. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner may participate Zoning Board’s consideration of Copar & Westerly Granite’ appeal of the Westerly Zoning Official’s Cease and Desist Order, notwithstanding that his former daughter-in-law is an abutter to the quarry under review. This opinion is strictly limited to the Code of Ethics and provides no opinion as to whether the Westerly Town Charter, the Westerly Code of Ordinances or any other statutes, regulations, rulings or policies prohibit his participation in this matter. Code Citations: Regulation 36-14-5004 Keywords: Family Nepotism [1] More than one Cease & Desist order has been issued. This particular appeal is of Westerly Zoning Official Elizabeth J. Burdick’s November 2, 2012, “Notice of Violation and Cease & Desist Order.” [2] The Zoning Board was scheduled to consider this matter on May 8, 2013, however, it has been administratively continued until June 12, 2013.