Advisory Opinion No. 2013-9 Advisory Opinion No. 2013-9 Re: Allen Rivers QUESTION PRESENTED The Petitioner, a member of the Woonsocket Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the Zoning Board’s reconsideration of a variance application, given his business associate’s past appearance as a remonstrant in that matter and the possibility that his business associate may appear again during the public comment portion of the variance hearing. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Woonsocket Zoning Board of Review, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Zoning Board’s reconsideration of a variance application, notwithstanding his business associate’s past appearance as a remonstrant in that matter and the possibility that his business associate may appear again during the public comment portion of the variance hearing. The Petitioner is a member of the Woonsocket Zoning Board of Review (“Zoning Board”), having been appointed in December 2011. He states that the Zoning Board consists of five (5) members appointed by the City Council and two (2) alternates appointed by the Mayor. He informs that a quorum consists of five (5) members. In his private capacity, the Petitioner is a contractor, owning and operating Riverside Home Improvements, LLC. The Petitioner informs that the Superior Court has ordered the Zoning Board to reconsider its prior denial of a dimensional variance sought by Gary Fernandes (“Fernandes”). The Petitioner states that Fernandes’ application was first considered during a public hearing on July 9, 2012, when Fernandes gave a presentation and three (3) members of the public spoke during the opportunity for public comment.[1] On July 23, 2012, Fernandes’ application was denied by the Zoning Board after it failed to receive the four (4) affirmative votes necessary to approve a variance. The vote was three (3) to two (2), with the Petitioner voting to deny Fernandes’ application. Thereafter, Fernandes appealed the Zoning Board’s decision and in November 2012 the Superior Court remanded the matter back to the Zoning Board for additional findings of fact. The Petitioner represents that the applicant, Fernandes, is not his business associate, family member or employer. He further represents that he is not an abutter to the property, which is the subject of Fernandes’ application, and that he has no financial interest whatsoever in the granting or denial of this variance. However, one of the members of the public who provided comment during the Zoning Board’s July 9, 2012, consideration of Fernandes’ variance application was Roland Michaud (“Michaud”). The Petitioner states that he and Michaud, and their spouses, jointly own two (2) properties in Wareham, Massachusetts, sharing in the expenses and upkeep of the properties. He states that Michaud regularly attends and speaks out at public meetings in Woonsocket. He represents that Michaud is neither an abutter to Fernandes’ property nor does he have any other financial interest in Fernandes’ application. He states that Michaud’s comments related to the application’s lack of conformity with the comprehensive plan and its failure to satisfy the statutory requirements for the granting of a variance. The Petitioner represents that Fernandes alleged in his appeal to the Superior Court that the Petitioner should not have participated in the Zoning Board’s consideration of his application, given Michaud’s public comments during the hearing.[2] He seeks this advisory opinion to ascertain, prior to the Zoning Board’s reconsideration of Fernandes’ application, whether the Code of Ethics prohibits him from participating in the matter if Michaud once again speaks during the period of public comment.[3] The Zoning Board will schedule Fernandes’ application for a meeting following the issuance of this advisory opinion. Business Associates A “business associate” is defined as any individual or business entity joined together with a public official “to achieve a common financial objective.” R.I. Gen. Laws 36-14-2(3), (7). Here, the Petitioner and Michaud, as co-owners of real estate, sharing in the expenses and upkeep of the properties, are “business associates” as that term is defined in the Code. See A.O. 2002-71 (opining that the Cumberland Assistant Solicitor was the business associate of a private real estate developer with whom he had entered into a purchase and sales agreement for commercial property); A.O. 2000-62 (opining that the Deputy Director of the Providence Tourism Council, who was a minority owner of a restaurant, was required to recuse from matters affecting his restaurant and/or the financial interests of his business associates, the other owners of the restaurant). Prohibited Activities, R.I. Gen. Laws § 36-14-5(f) Rhode Island General Laws § 36-14-5(f) requires a person subject to the Code to recuse himself from participation when his business associate represents himself before the state or municipal agency of which the person is a member or employee. A person represents himself before a state or municipal agency if he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his own favor. Section 36-14-2(12); Commission Regulation 36-14-5016(a)(1). In the present matter, the Petitioner has represented that Michaud is not a party to the Fernandes variance application, is not an abutter to the subject property, and has no financial interest in the Zoning Board’s decision. Rather, Michaud is exercising his right to address the Zoning Board during a public comment period that is open to all members of the public. Under such circumstances, Michaud is not “represent[ing] himself” as that term is used in § 36-14-5(f) and defined in § 36-14-2(12). Accordingly, § 36-14-5(f) does not require the Petitioner to recuse from the Fernandes variance application should Michaud choose, once again, to appear during the public comment period. Commission Regulation 36-14-5002 Commission Regulation 36-14-5002(a)(2) (“Regulation 5002”), entitled, “Additional circumstances warranting recusal,” requires a person subject to the Code to recuse himself from participation if his business associate appears or presents evidence or arguments before his state or municipal agency. A recent amendment to Regulation 5002, effective June 3, 2012, provides for an exception that is applicable to the instant set of facts. Regulation 5002(b)(2) provides: (b) A person subject to the Code of Ethics is not required to recuse himself or herself pursuant to this or any other provision of the Code when: (2) The person’s business associate, employer, household member or any person within his or her family is before the person’s state or municipal agency during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the business associate, employer, household member or person within his or her family is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. This exception is similar to the public forum exception set forth in Commission Regulation 36-14-7003. It focuses on unique situations, not otherwise contemplated by § 36-14-5(f) or Regulation 5002(a), where a public official’s family member, business associate or employer appears before the public official’s board on a matter in which they have no financial interest and are not a party or a participant. The most illustrative examples of these situations, and the impetus for the June 2012 amendments to Regulation 5002, can be found in two (2) advisory opinions issued to Danielle Coulter, who was then a member of the Tiverton School Committee. In Advisory Opinion 2010-3, Mrs. Coulter asked if she was required to recuse if her husband provided brief public comment during a School Committee workshop in support of merit pay for school personnel. Mr. Coulter had no personal financial interest in the matter. Regulation 5002, as it existed at the time, required Mrs. Coulter to recuse if her husband was going to appear before her board, irrespective of whether he had any financial interest. Mrs. Coulter was instructed to recuse merely for the duration of her husband’s public comment but was permitted to participate in the matter before and after her husband’s appearance. Similarly, Advisory Opinion 2009-43 opined that Mrs. Coulter was required to recuse if her husband appeared before the School Committee to propose a workshop regarding merit compensation, but her recusal was limited to the duration of his participation. After reviewing the application of Regulation 5002 in Advisory Opinions 2010-3 and 2009-43, the Commission recognized that recommending recusal in these circumstances was not consistent with the spirit and purpose of the Code of Ethics. Therefore, the Commission adopted an exception to Regulation 5002, which recognized a limited set of circumstances that can occur when a board receives public comment and a person who appears to speak, on a matter of general public interest, is not a party or participant and does not have a financial interest in the matter. If a person affiliated with a board member appears to provide public comment, and all of the requirements of Regulation 5002(b)(2) are met, then recusal is not required. In the present matter, if there is an opportunity for public comment during the reconsideration of Fernandes’ application, the Petitioner is not required to recuse if Michaud appears before the Zoning Board, provided that all the requirements of Regulation 5002(b)(2) are satisfied. This is based upon the Petitioner’s representations that Michaud is not a party or participant in Fernandes’ application, is not an abutter to the property in question, and has no financial interest in the approval or denial of this variance. Michaud may speak during the public comment period provided that all other members of the public have an equal opportunity to comment. Finally, an application for a zoning variance is a matter of general public interest, given that the public is required by statute to be notified and provided an opportunity to speak at the public hearing. R.I. Gen. Laws § 45-24-41. See also A.O. 95-100 (applying the public forum exception to allow a planning board member to appear before his own board, as a private citizen, to provide public comment on proposed zoning changes, even though he was not an abutter, because it was a matter of general public interest). Conclusion Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not required to recuse from participating the in Zoning Board’s reconsideration of Fernandes’ application and findings of fact, irrespective of whether Michaud, his business associate, appears and speaks during a period of public comment. This opinion is strictly limited to the Code of Ethics and provides no opinion as to whether the Woonsocket City Charter, the Woonsocket Code of Ordinances or any other statutes, regulations, rulings or policies prohibit his participation in this matter. Finally, the Commission provides no opinion regarding whether the Petitioner, in his quasi-judicial capacity as a member of the Zoning Board, should be disqualified from participating because of bias or prejudice. See Champlin’s Realty Assoc. v. Tikoian, 989 A.2d 427 (R.I. 2010). Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-2(12) § 36-14-5(f) § 36-14-6 Commission Regulation 36-14-5002 Commission Regulation 36-14-5016 Commission Regulation 36-14-7003 Commission Regulation 1024 Related Advisory Opinions: A.O. 2010-3 A.O. 2009-43 A.O. 2002-71 A.O. 2000-62 A.O. 95-100 Other Related Authority R.I. Gen. Laws § 45-24-41 Champlin’s Realty Assoc. v. Tikoian, 989 A.2d 427 (R.I. 2010). Keywords: Business Associate Recusal [1] The Petitioner represents that each time the Zoning Board considers a variance application the Chair first invites the applicant to make a presentation and then opens the floor to public comment. Additionally, R.I. Gen. Laws § 45-24-41(b) provides: “The zoning board shall hold a public hearing on any application for variance in an expeditious manner, after receipt, in proper form, of an application, and shall give public notice at least fourteen (14) days prior to the date of the hearing in a newspaper of general circulation in the city or town.” [2] The Commission only issues advisory opinions regarding prospective conduct and cannot provide an opinion as to past conduct. In this matter, the recitation of the Petitioner’s participation in July is only provided for clarity and completeness of the relevant facts. [3] Fernandes’ attorney for the zoning appeal and related civil litigation provided the Commission with correspondence and attachments on February 5, 2013. Although advisory opinions are only based upon the representations made by, or on behalf of the person requesting the opinion, Commission Staff nevertheless reviewed this correspondence and found that it contained no information that would change the draft opinion. See Commission Regulation 1024(g).