Advisory Opinion No. 2016-13 Rhode Island Ethics Commission Advisory Opinion No. 2016-13 Approved: March 22, 2016 Re: Anthony D. Murgo QUESTION PRESENTED: The Petitioner, a member of the Bristol Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s consideration of a proposed hotel development on Gooding Avenue, given that his first cousins own two residences within 300 feet of the perimeter of the subject property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Bristol Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in the Planning Board’s consideration of a proposed hotel development on Gooding Avenue, given that his first cousins will be financially impacted by the Planning Board’s decision. The Petitioner is a member of the Bristol Planning Board (“Planning Board”), having served continuously since his appointment by the Bristol Town Council in 2001. He states that the Planning Board is scheduled to review a development plan application for a hotel to be located on the south side of Gooding Avenue across from the intersection at Broadcommon Road. He states that LaFrance Hospitality (“LaFrance”) of Westport, Massachusetts, has proposed construction of an approximately 14,000 square foot, seventy-five room hotel (Comfort Inn) on this currently vacant, wooded lot. He informs that the Planning Board is scheduled to receive public comment and consider LaFrance’s application at its public meeting on April 12, 2016. He states that the location of this particular property requires notice to be sent by certified mail, return receipt requested, to “all owners of real property whose property is located within three hundred (300) feet of the perimeter of the subject property . . . .” Bristol Subdivision and Land Development Regulations (“Bristol SLDR”) § 8.5(C)(3)(b). The Petitioner represents that his first cousins, Emily Spinard and Patti Cirillo, own two adjacent residences at 35 & 37 Dartmouth Street that are located within the 300-foot notice area for the LaFrance application. He states that 35 Dartmouth Street is owned by Emily Spinard and 37 Dartmouth Street is owned by Patti Cirillo.[1] A further review of the Planning Board’s regulations reveals that the Petitioner’s first cousins, as persons required to receive notice, are considered to be “aggrieved parties” and would have standing to appeal the Planning Board’s decision to approve or reject LaFrance’s application. Bristol SLDR § 10.1; R.I. Gen. Laws § 45-23-66. Cognizant on the Code of Ethics’ restrictions on participating in matters that would financially impact members of his family, the Petitioner seeks guidance as to whether he is required to recuse from the Planning Board’s consideration of the LaFrance application given that his first cousins’ houses are located within 300 feet of the subject property. Notably, the minutes of the January 19, 2016 meeting of the Town’s Technical Review Committee reveal that Emily Spinard’s husband, Edward J. Spinard, Jr., the Petitioner’s first cousin-in-law, attended the meeting and provided both oral and written comment in opposition to the LaFrance Application.[2] Mr. Spinard’s objections to LaFrance’s development plan for a hotel particularly focus on the potential for increased flooding in his neighborhood if the subject property’s wetlands are filled in. Mr. Spinard’s written comments include a petition against the LaFrance application which was signed by himself, and all of the Petitioner’s family members who were identified in the instant request for an advisory opinion: Emily Spinard, Patti Cirillo, and Josephine Murgo. A person subject to the Code of Ethics may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he, any family member, business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d). The definition of “any person within his [] family” specifically includes “first cousin” and “first cousin-in-law.” Commission Regulation 36-14-5004(a)(2). In advisory opinions involving real property, the Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property.[3] Applying this presumption, the Commission has often opined that a public official may not participate in decisions concerning such property absent some evidence that the official action would not financially impact the abutting property connected to the public official, or his family members, business associates or employers. The Commission has previously opined that a public official must recuse from participation in matters relating to property that abuts or is within the required notice area of real estate owned by members of his family, as that term is defined in the Code of Ethics. For example, in Advisory Opinion 2006-52 the Commission opined that a Block Island Land Trust member was prohibited by the Code of Ethics from participating in discussions and voting relative to agreements and litigation concerning property that abutted real estate owned by the petitioner’s aunts, uncles and cousins. Similarly, in Advisory Opinion 2006-49, the Commission opined that an East Providence Zoning Board member was prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of an appeal from the East Providence Planning Board because his uncle-in-law was an abutter to the property that was the subject of the appeal. In the present matter, the Petitioner represents that two of his first cousins live within the 300-foot notice area surrounding the perimeter of the subject property in the LaFrance application. Here, it is clear that the presumption of financial impact is not only triggered but also bolstered by the fact that Mr. Spinard, the Petitioner’s first cousin-in-law, has already stated his opposition to the LaFrance application, both orally and in writing, and argued that this project would increase flooding in his neighborhood. Furthermore, all of the Petitioner’s family members who live near or within the 300 foot notice area have signed Mr. Spinard’s petition against the LaFrance application. Accordingly, we find that it is reasonably foreseeable that the Petitioner’s family members will be financially impacted by the Planning Board’s decision whether or not to grant LaFrance’s application to build a hotel on Gooding Avenue. Furthermore, we decline to apply section 36-14-7(b)[4] of the Code of Ethics, commonly referred to as the “class exception,” to the instant matter. Here, the LaFrance application requires notice to be given to approximately ninety-three properties located within the 300-foot notice area surrounding the perimeter of the subject property. The Petitioner’s family members own two of the ninety-three properties in this small class, which may be further divided into subclasses for the types of properties comprising this class, including private residences, vacant residential lots, and commercial businesses. Furthermore, our prior analogous advisory opinions have highlighted the difficulty of applying the class exception to real property, given the unique nature of each discrete piece of real estate and the fact that actions affecting real property and its value will likely create a dissimilar impact on each property owner. See, e.g., A.O. 2016-3 (declining to apply the class exception and opining that a Scituate Town Council member, who owned two of the fifty-seven properties located with 300 feet of the Hope Mill, was required to recuse from the Town Council’s consideration of a tax stabilization agreement for the Hope Mill); A.O. 2008-63 (declining to apply the class exception and opining that a Narragansett Town Council member was required to recuse from the Town Council’s consideration of a Zoning Ordinance amendment that would create a village zoning district that impacted approximately seventy properties, including two properties owned by the petitioner, given the small size of the class and the unique nature of each discrete piece of real estate). For all of these reasons and consistent with our prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in the Planning Board’s consideration of a proposed hotel development on Gooding Avenue, given that his first cousins own two residences that will be financially impacted by the Planning Board’s decision.[5] 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: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2016-3 A.O. 2008-63 A.O. 2006-52 A.O. 2006-49 Keywords: Property Interest Recusal