Advisory Opinion No. 2017-5 Rhode Island Ethics Commission Advisory Opinion No. 2017-5 Approved: February 7, 2017 Re: Steven Contente QUESTION PRESENTED : The Petitioner, the Town Administrator for the Town of Bristol, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Bristol Zoning Board ’ s review of an application for a special use permit to construct a freestanding Dunkin Donuts restaurant with a drive-thru window, given that he owns real estate in the area and is a member of the Bristol Volunteer Fire Department, whose volunteer fire fighters oppose the zoning application. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Administrator for the Town of Bristol, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Bristol Zoning Board ’ s review of an application for a special use permit to construct a freestanding Dunkin Donuts restaurant with a drive-thru window, notwithstanding that he owns real estate in the area and that he is a member of the Bristol Volunteer Fire Department, whose volunteer fire fighters oppose the zoning application. The Petitioner is the newly elected Town Administrator for the Town of Bristol ( “ the Town ” ) and is also a member of the Bristol Volunteer Fire Department ( “ Fire Department ” ). The Petitioner informs that his duties as the Town Administrator involve the appointment and supervision of most T own officials and department heads, including the Police and Fire Chiefs. The Petitioner oversees the activities of all T own officials, departments and agencies. The Town Administrator is also charged with the duty to ensure that the laws and ordinances of the Town are faithfully executed and to recommend such measures to the Town Council for consideration as he may deem appropriate for the welfare of the Town. [1] The Petitioner represents that Prazeres Management Co., Inc. ( “ Prazeres ” ), a private entity, has a pending zoning application ( “ the Zoning Application ” ) before the Zoning Board, seeking a special use permit to construct a new , 1,100 square foot , freestanding Dunkin Donuts restaurant with a drive-thru service widow, as well as a dimensional variances to install signs larger than permitted in the zoning district. The Petitioner represents that the new freestanding Dunkin Donuts restaurant will be located in Gooding Plaza, a retail shopping center on the corner of Gooding Avenue and Hope Street. The Petitioner further explains that , currently , t here is a n existing Dunkin Donuts restaurant without a drive-thru window, which will cease to operate once the new construction is completed . The Petitioner represents that , as Town Administrator, he opposes the Zoning Application due to its lack of a comprehensive study of the effects of the drive-thru service window on public safety, specifically its effects on the adjacent fire station and the emergency response time of its firefighters. The Petitioner also believes that the construction of the drive-thru service window contradicts the purpose of the Town ’ s Comprehensive Plan, specifically its plan to work with the Rhode Island Public Transit Authority ( “ RIPTA ” ) to create a designated Park and Ride facility in Gooding Plaza, at the corner of Gooding Avenue and Hope Street. [2] The Petitioner states that currently there is a petition before the Town Council opposing the Zoning Application, signed by approximately three hundred residents. The Petitioner represents that he would like to direct the Police Chief, the Fire Chief and the Principal Town Planner to conduct detailed studies of the effects of the drive-thru service window on public safety and its compliance with the Town ’ s Comprehensive Plan. In his capacity as the Town Administrator, the Petitioner would like to participate in the discussion and voice his concerns and objections to the Zoning Application at the Zoning Board meeting. The Petitioner states that the Town Administrator has no appointing authority over the Zoning Board. The Petitioner states that he owns real property located just outside of the 200-foot notice requirement for the Zoning Application. However, the Petitioner represents that the construction of the drive-thru service window would have no financial impact on his property, as the proposed construction would not be visible from his property and Gooding Plaza is already a commercial shopping area with an existing Dunkin Donuts restaurant. T he Petitioner further explains that there is a Fire Station directly adjacent to Gooding Plaza. The Petitioner represents that the volunteer firefighters from this Fire Station have raised concerns regarding the Zoning Application due to its effects on public safety. The Petitioner also explains that he is a member of the Volunteer Fire Department and that the Fire Department is a municipal agency. Given this set of facts , the Petitioner is asking whether the Code of Ethics prohibits him from participating in discussion relative to the Zoning Application or from directing the Town ’ s department heads to conduct a comprehensive review of the effects of the drive-thru window construction on public safety and presenting the review to the Zoning Board for consideration. Under the Code of Ethics, a public official is prohibited 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 business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-5(d). A public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 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). 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). In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must first ascertain whether the Petitioner will be financially impacted by the official action that is under consideration , given that he owns a residence just outside o f the 200-foot notice zone . 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. 2016-36 (advising that a member of the Westerly Town Council may participate in discussion and voting relative to a proposed Airport Protection Overlay District Ordinance, given that t he petitioner and his wife own properties in zones not regulated under, nor financially impacted by, the adoption of the proposed ordinance); A.O. 2002-30 (advising that a member of the Jamestown Town Council may participate in decisions regarding property near to, but not abutting, his property, and that, absent some evidence indicating a reasonable forseeability of financial impact, there was no presumption of a financial impact); A.O. 98-58 (opining that the Code of Ethics does not prohibit a member of the East Providence Zoning Board from participating in proceedings regarding a variance request where petitioner represented that he did not believe a zoning change would financially impact his property, notwithstanding that petitioner‘s private residence is located within 200 feet of the subject property) . Here, the Petitioner represents that his property will not be financially impacted by the construction of the freestanding Dunkin Donuts restaurant and the drive-thru service window. Furthermore, the Petitioner explains that , beyond the safety concerns associated with the Zoning Application, the Volunteer Fire Department will not be financially impacted by its approval. Moreover, even if there is a financial impact on the Fire Deparment, under the Code of Ethics neither the Town, a municipal agency, nor the Fire Department, also a municipal agency, are considered to be “ businesses. ” The Ethics Commission has consistently concluded that the Code of Ethics does not consider the relationship between a public official and a public body to be that of a “ business associate. ” For example, in Advisory Opinion 2011-29 , the Ethics Commission opined that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation ( “ DOT ” ), could participate in the Planning Board ’ s consideration of a development proposal, notwithstanding that in her capacity as a DOT engineer she had been reviewing the same property to ensure that the state ’ s property interests were protected. Accordingly, in consideration of the Petitioner ’ s representations and the relevant provisions of the Code of Ethics , it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in the Zoning Board ’ s review of the Zoning Application or from directing the pertinent Town department heads to conduct a comprehensive review of the impact of the Zoning Application on public safety. 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(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions : A.O. 2016-36 A.O. 2002-30 A.O. 2011-29 A.O. 98-58 Other Related Authority Town of Bristol, RI, Code of Ordinances, art. III, §306 Town of Bristol, Comprehensive Plan-2009 Keywords : Financial Interest Property Interest Abutter [1] Town of Bristol, RI, Code of Ordinances, Art. III, § 306, https://www.municode.com/library/ri/bristol/codes/code_of_ordinances?nodeId=PTIICH_ART3TOAD, (last accessed on 1/31/17) [2] Town of Bristol, RI, Comprehensive Plan-2009, http://www.bristolri.us/DocumentCenter/Home/View/253 (last accessed 1/31/17)