Advisory Opinion No. 2016-36 Rhode Island Ethics Commission Advisory Opinion No. 2016-36 Approved: October 18, 2016 Re: Philip Overton QUESTION PRESENTED: The Petitioner, a member of the Westerly Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in discussion and voting relative to a proposed Airport Protection Overlay District Ordinance, given that the Petitioner and his wife own properties in zones not regulated under, nor financially impacted by the adoption of the proposed ordinance. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Town Council, a municipal elected position, may participate in discussion and voting relative to a proposed Airport Protection Overlay District Ordinance, given that the Petitioner and his wife own properties in zones not regulated under, nor financially impacted, by the adoption of the proposed ordinance. The Petitioner is a member of the Westerly Town Council (“Town Council”). The Petitioner represents that, as required by law, the Town Council is considering the adoption of a proposed draft for an Airport Protection Overlay District Ordinance (“Ordinance”). See R.I. Gen. Laws § 1-3-5.[1] The Petitioner states that the Ordinance was drafted by Town Staff, without his participation, and is aimed at creating “an Airport Protection Overlay District that takes into consideration safety around the Airport, creates appropriate zones regulating development, establishes the boundaries thereof, provides for changes in the restrictions and boundaries of such zones, creates a permitting process for use within said zones and provides for enforcement, appeal, and judicial review processes.”[2] The Petitioner estimates that the Ordinance will impact about Nine Hundred Thirty-Six (936) parcels located in the Airport Protection Overlay District, and is likely to somewhat reduce their value. The Petitioner represents that he and his wife both own properties located in the so-called “non-regulated” zones. The Petitioner specifically points out that the properties within such non-regulated zones are outside of the reach of the Ordinance and, thus, are not in any way financially impacted by it. Given this set of facts, the Petitioner requests an advisory opinion as to whether he may participate in discussion and voting relative to the Ordinance. 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 in the public interest. Section 36-14-5(a). An official will have an interest in substantial conflict with his duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. Section 36-14-7(a); Commission Regulation 36-14-6001. The Code of Ethics further prohibits an official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, employer or any person within his family. Section 36-14-5(d) In order to determine whether the above provisions of the Code of Ethics are implicated, the Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. If a financial impact, positive or negative, is not reasonably foreseeable, then the Petitioner is not required by these provisions of the Code of Ethics to recuse from participation and vote on the issue. See A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could participate in the Town Council’s discussion and vote on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon); A.O. 99-92 (advising that a Lincoln Zoning Board member could participate in a matter, although she is technically is an abutter, given the petitioner’s representation that the Zoning Board decision would have no financial impact on her property). Here, the properties located within the Airport Protection Overlay District will be financially impacted by the Ordinance. However, the properties owned by the Petitioner and his wife are not located within the Airport Protection Overlay District, but rather within the non-regulated zones not subject to the Ordinance’s restrictions. Accordingly, and relying upon the Petitioner’s representations that there is no direct financial impact on the Pertitioner’s or his spouse’s properties, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s participation in the Town Council’s consideration and vote on the proposed Airport Protection Overlay District Ordinance. 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) Commission Regulation 36-14-6001 Related Advisory Opinions: A.O. 2012-2 A.O. 99-92 Other Related Authority § 1-3-5(1) Airport Protection Overlay District Ordinance, http://ri-westerly.civicplus.com/DocumentCenter/Home/View/1141 Keywords: Property Interest [1] “In order to prevent the creation or establishment of airport hazards, every political subdivision having an airport hazard area wholly or partly within its territorial limits shall adopt, administer, and enforce, under the police power and in the manner and upon the conditions prescribed, airport zoning regulations for that part of the airport hazard area which is within its territorial limits, which regulations may divide the airport hazard area into zones, and, within those zones, specify the land uses permitted and regulate and restrict the height to which structures and trees may be erected or allowed to grow.” R.I. Gen. Laws § 1-3-5(1). [2] Airport Protection Overlay District Ordinance, http://ri-westerly.civicplus.com/DocumentCenter/Home/View/1141 (last accessed Oct. 6, 2016).