Advisory Opinion No. 2015-34 Rhode Island Ethics Commission Advisory Opinion No. 2015-34 Approved: July 21, 2015 Re: Catherine DeNoia QUESTION PRESENTED: The Petitioner, a member of the Westerly Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Planning Board’s consideration of a major land development application for a proposed postsecondary education campus to be located at 17 Canal Street in Westerly, given that she is a member of the Board of Directors of Greater North End Community Development, Inc., and representatives of that organization will likely provide public comment during the public hearing for that application. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Planning Board, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Planning Board’s consideration of a major land development application for a proposed postsecondary education campus to be located at 17 Canal Street in Westerly, notwithstanding that she is a member of the Board of Directors of Greater North End Community Development, Inc., and representatives of that organization will likely provide public comment during the public hearing for that application. The Petitioner is a member of the Westerly Planning Board (“Planning Board”), having been appointed thereto by the Westerly Town Council in January 2014. She informs that on July 21, 2015, the Planning Board is scheduled to consider the major land development application of Sorenson & McCuin Contractors, LLC (“Sorenson”), relative to establishing a Westerly Campus with the Rhode Island Council on Postsecondary Education[1] at Sorenson’s property located at 17 Canal Street.[2] She represents that Sorenson is proposing the construction of an approximately 35,000 square foot building at 17 Canal Street that would include classrooms for the Community College of Rhode Island and training facilities for Electric Boat. She states that the Planning Board will evaluate whether Sorenson’s application is consistent with the Town’s Comprehensive Plan and Zoning Ordinance, and whether it has met all of the requirements for major land development approval. In her private capacity, the Petitioner states that she is a member of the Board of Directors of Greater North End Community Development, Inc. (“North End”), a private non-profit entity whose mission is: [T]o preserve and revitalize the cultural, social and historic character of the greater North End of Westerly through arts and educational initiatives for children and adults; to advocate for affordable housing and secure neighborhoods: [sic] to seek resources for families and the underprivileged; and to collaborate with social service, civic, and other organizations to these ends.[3] She further informs that her husband, Michael DeNoia, is also a member of North End’s Board of Directors. The Petitioner states that neither she nor any member of her family has any connection to this project, CCRI, Electric Boat, the Royce Family Fund or Sorenson. She informs that her primary residence is located 8/10 of a mile from 17 Canal Street, which is significantly beyond the 200 foot radius of the project and, thus, she was not required to receive notice of Sorenson’s application. Westerly Code of Ordinances § A261-28(D)(4)(a). The Petitioner states that North End does not own any property in the Town. She represents that North End is not a party or participant in Sorenson’s application. She further represents that North End has no financial interest in Sorenson’s application and will not be financially impacted by the Planning Board’s approval or disapproval of it. However, she informs that representatives of North End, including some members of its Board of Directors, will likely attend the Planning Board’s public hearing for Sorenson’s application and may provide public comment. See Westerly Code of Ordinances § A261-34 (setting forth the requirements for the public hearing and notice thereof). Based upon the above representations, the Petitioner seeks guidance as to whether she may participate in the Planning Board’s review of Sorenson’s application, given her membership on North End’s Board of Directors. As an initial matter, we note that the Petitioner and North End are “business associates” as that term is defined in the Code of Ethics. A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). The Commission has previously opined 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. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts and was, thus, required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests); A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC). Here, because the Petitioner, as a member of North End’s Board of Directors, is a “business associate” of North End, we must determine if the Petitioner is required to recuse from the Planning Board’s consideration of Sorenson’s application if representatives of North End appear at the public hearing to provide public comment. Commission Regulation 36-14-5002(a)(2) (“Regulation 5002”) requires a public official to recuse from participating in a matter before her state or municipal agency when her business associate appears or presents evidence or arguments. However, Regulation 5002 contains an exception that a person subject to this Code of Ethics is not required to recuse herself pursuant to this or any other provision of the Code when: 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. Regulation 5002(b)(2). This exception focuses on unique situations, not otherwise contemplated by 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 the person appearing has no financial interest in the matter and is not a party or a participant. The Commission first had occasion to apply Regulation 5002(b)(2) in Advisory Opinion 2013-9, wherein the Commission opined that a Woonsocket Zoning Board of Review member was 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 could appear again during the public comment portion of the variance hearing. There, the petitioner represented that his business associate was not a party or participant in the variance application, did not own property within the 200 foot perimeter of the property under review, and did not have a financial interest in the matter. In the present matter, the Petitioner is not required to recuse if her fellow members of North End’s Board of Directors, or any other representative of North End, appear before Planning Board during the public comment portion of the hearing on Sorenson’s major land development application. This is based upon the Petitioner’s representations that: North End is not a party or participant in Sorenson’s application; North End does not own any property within 200 feet of the perimeter of the subject property; and North End does not have any financial interest in the outcome of Sorenson’s application. Here, North End’s representatives would be exercising their right to address the Planning Board during a public comment period that is open to all members of the public on a matter of general public interest, a postsecondary education campus. Accordingly, we find that these representations are sufficient to trigger the application of the exception set forth in Regulation 5002(b)(2). For all of these reasons, absent any other relevant fact that would implicate provisions of the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Planning Board’s consideration of Sorenson’s major land development application. 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: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2015-27 A.O. 2014-14 A.O. 2013-9 A.O. 2012-28 Keywords: Business Associate Recusal [1] The Council on Postsecondary Education (formerly known as the Board of Governors for Higher Education) oversees Rhode Island’s higher education system which includes: the Community College of Rhode Island, Rhode Island College and the University of Rhode Island. See R.I. Gen. Laws §§ 16-97-1 to -8; §§ 16-59-1 to -6. [2] While Sorenson, as owner of the property, is the applicant before the Planning Board, the project is led by the Royce Family Fund, a private non-profit entity that intends to buy the property from Sorenson if the project is approved by the Town. [3] See http://northendcrimewatch.org/. The Petitioner represents that North End began as a neighborhood watch organization.