Advisory Opinion No. 2017-11 Rhode Island Ethics Commission Advisory Opinion No. 2017-11 Approved: March 21, 2017 Re: Beverly Burgess QUESTION PRESENTED: The Petitioner, the Chairperson of the North Providence Historic District Commission, a municipal appointed position, requests an advisory opinion as to whether, upon recusal, she may attend and speak at a public hearing before the North Providence Historic District Commission regarding a proposed development of property that directly abuts her personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chairperson for the North Providence Historic District Commission, a municipal appointed position, may, upon recusal, attend and speak at a public hearing before the North Providence Historic District Commission regarding a proposed development of property that directly abuts her personal residence. The Petitioner is the Chairperson for the North Providence Historic District Commission (“the HDC”). The Petitioner represents that her personal residence abuts a lot that was recently acquired by a developer who is planning to construct five single-family homes on the property. The Petitioner is anticipating the submission of the developer’s application to begin construction (“the application”) with the HDC. The Petitioner states that she has considerable experience creating and working within the Historic District and that her priority is preserving the architectural fabric of the Historic District within the context of a new development. The Petitioner represents that she will recuse herself from participation in the HDC’s discussion and voting on the application but seeks guidance from the Ethics Commission as to whether she may speak at a public hearing before the HDC regarding the application. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with her official duties if she has a reason to believe or expect 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). Section 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, a family member, a business associate or an employer. Furthermore, a public official may not represent herself or any other person before the agency of which she is a member or by which she is employed. Section 36-14-5(e)(1) and (2). However, the Code of Ethics contains a “Public Forum Exception” which provides that a public official may publicly express her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or her spouse or dependent child. Commission Regulation 36-14-7003. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O. 2006-37 (member of Smithfield Town Council may, upon recusing from participation as a member of the Town Council, provide public comment as an abutter regarding a zone change petition filed on behalf of a limited liability company which proposes to construct condominiums on the subject property); A.O. 2005-16 (member of the Narragansett Town Council may, upon recusal, attend and provide public comment at meetings of the Town Council regarding a change of zone request where he is an abutter); A.O. 2003-15 (member of the Scituate Town Council may, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he is an abutter provided that he does not receive special access or priority not available to any other member of the public); A.O. 2002-65 (member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public). Consistent with these prior opinions, and pursuant to the Public Forum Exception found at Regulation 36-14-7003, it is the opinion of the Ethics Commission that the Petitioner may address the HDC during its application review concerning the property abutting her residence, as long as the Petitioner does not receive access or priority not available to any other member of the public. The Petitioner is further cautioned that she may not use her position in any way to influence members of the HDC. See section 36-14-5(d). Finally, the Petitioner must recuse from participation and voting on this matter. Notice of recusal must be filed with the HDC and the Rhode Island Ethics Commission pursuant to section 36-14-6. 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) § 36-14-5(e) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-7003 Related Advisory Opinions: A.O. 2006-37 A.O. 2005-16 A.O. 2003-15 A.O. 2002-65 Keywords: Public Forum Exception Property Interest