Advisory Opinion No. 2017-46 Rhode Island Ethics Commission Advisory Opinion No. 2017-46 Approved: October 17, 2017 Re: Gerald J. Diebold QUESTION PRESENTED: The Petitioner, a member of the Barrington Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he may participate in the Planning Board’s consideration of an application for a comprehensive permit/plan revision for Sweetbriar Apartments, given that prior to his appointment he testified before the Planning Board in opposition to a different project proposed by the owner of Sweetbriar Apartments. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Planning Board in the Town of Barrington, a municipal appointed position, may participate in the Planning Board’s consideration of an application for a comprehensive permit/plan revision for Sweetbriar Apartments, notwithstanding that prior to his appointment he testified before the Planning Board in opposition to a different project proposed by the owner of Sweetbriar Apartments. The Petitioner is a member of the Planning Board in the Town of Barrington, having been appointed by the Barrington Town Council in July 2016. In his private capacity, the Petitioner is a Professor of Chemistry at Brown University. The Petitioner represents that in the months prior to his appointment he spoke at Barrington Planning Board meetings as a resident in opposition to an affordable housing project known as Palmer Pointe that was being developed by East Bay Community Development Corporation (“East Bay CDC”). Specifically, the Petitioner represents that at a public hearing before the Planning Board on April 5, 2016, regarding a preliminary plan/comprehensive permit application for Palmer Pointe, the Petitioner gave public comment to voice his general objections to the site’s development. The matter was continued to another public meeting of the Planning Board on May 3, 2016, at which the Petitioner again testified, this time as an expert witness in arsenic contamination on behalf of an organized group of residents opposed to the development. The Petitioner states that he was not compensated for his service as an expert witness, and volunteered his time because of his personal opinion on the matter. The Petitioner represents that ultimately the Palmer Pointe project was approved by the Town of Barrington and is being reviewed by certain state agencies. The Petitioner states that East Bay CDC, the owner of Palmer Pointe, is developing other affordable housing in Barrington known as Sweetbriar Apartments (“Sweetbriar”). He represents that the Sweetbriar development is located miles from Palmer Pointe and is distinct from the other project other than the fact that both are being developed by East Bay CDC. Currently pending before the Planning Board is East Bay CDC’s application for a comprehensive permit/plan revision for Sweetbriar. The Petitioner represents that he has never offered testimony relative to Sweetbriar, is not an abutter to the property, and that neither he nor his family, his business associates or employer will be financially impacted by the development. However, given his previous testimony against Palmer Pointe, he asks whether the Code of Ethics prohibits him from participating in the Planning Board’s consideration of the Sweetbriar project. 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 or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). In the present matter, the facts as represented by the Petitioner do not require recusal because he is not an abutter to Sweetbriar and because he represents that neither he nor his family members, business associates or employer will be financially impacted by the development. See A.O. 2012-5 (Tiverton Planning Board member not required to recuse from discussion of proposed zoning changes to commercial district, notwithstanding that prior to his appointment he testified at public workshops to voice his personal opinion as to the proposed zoning changes, because he had no financial interest in the area or the proposed changes). Compare A.O. 2008-4 (opining that a member of the Tiverton Planning Board was prohibited from participating in the Planning Board’s review of the Tiverton Yacht Club’s request to change the Zoning Ordinance because, as a shareholder in the Yacht Club, it was reasonably foreseeable that the petitioner would be financially impacted by the Planning Board’s decision); A.O. 2003-27 (concluding that a member of the Middletown Town Council could not participate in the consideration of a proposed development since there was evidence that she would be impacted financially, namely that her brother-in-law owned property abutting the subject property). Here, the Petitioner states that he will consider the Sweetbriar matter fairly, objectively and with an open mind. Under such circumstances, the fact that the Petitioner previously voiced an opinion relative to Palmer Pointe does not create a bar to his participation in the Planning Board’s consideration of East Bay CDC’s other affordable housing project in Barrington. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Planning Board’s consideration of an application for a comprehensive permit/plan revision at Sweetbriar Apartments, notwithstanding his prior comments and testimony relative to Palmer Pointe. 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) Related Advisory Opinions A.O. 2012-5 A.O. 2008-4 A.O. 2003-27 Keywords Bias Recusal