Advisory Opinion No. 2018-4 Rhode Island Ethics Commission Advisory Opinion No. 2018-4 Approved: January 9, 2018 Re: John P. Carson, Sr. 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 the Town Council’s discussions and decision-making relative to the creation of beachgoer drop-off points near rights-of-way to Misquamicut and Watch Hill beaches, given that he is a seasonal employee at The Misquamicut Club and some of its members own property abutting or in a close proximity to the rights-of-way. 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 the Town Council’s discussions and decision-making relative to the creation of beachgoer drop-off points near rights-of-way to Misquamicut and Watch Hill beaches, notwithstanding that he is a seasonal employee at The Misquamicut Club and some of its members own property abutting or in a close proximity to the rights-of-way. The Petitioner is a member of the Westerly Town Council (“Town Council”). As part of his duties on the Town Council, the Petitioner is the liaison to the Town of Westerly Conservation Commission (“Conservation Commission”). The Petitioner explains that the Conservation Commission is resurveying the rights-of-way along the beach areas and is proposing, subject to the Town Council’s approval, the creation of beachgoer drop-off points (“drop-off points”) near the rights-of-way to the Misquamicut and Watch Hill beaches. In his private capacity, the Petitioner works as a seasonal employee, from April through October of each year, at the outside driving range of The Misquamicut Club (“Club”), a private golf course with tennis and beach clubs in the Town of Westerly (“Westerly”). The Petitioner represents that in June 2017, more than 135 Westerly residents signed and submitted to the Town Council a petition opposing the drop-off points. He further explains that some of the residents opposing the drop-off points are members of the Club who own property abutting or in a close proximity to the rights-of-way. The Petitioner represents that none of the members opposing the drop-off points have leadership positions in the Club or hiring authority over the Petitioner. The Petitioner states that the Club owns an undeveloped piece of beach property which is utilized solely for the purpose of draining a pond back into the ocean when storm waters wash over the beach barrier. The Petitioner represents the Club will not be financially impacted by the drop-off points as the beach property is located over 1,000 feet from the nearest drop-off point and the property is utilized for drainage purposes only. He further explains that neither he nor any of his family members will be impacted by the creation of the drop-off points. Given this set of facts, the Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from participation in the Town Council’s discussions and decision-making relative to the creation of the drop-off points. 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). 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 advisory opinions involving real property, the Ethics Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See, e.g., A.O. 2012-4; A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. Applying this presumption, the Commission has often opined that public officials may not participate in the discussion or vote on decisions concerning abutting property, absent reliable evidence that their official action would not affect the financial interests of the public official, either positively or negatively. The word “abutter” is a term of art, defined in the Rhode Island General Laws as “[o]ne whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land.” R.I. Gen. Laws § 45-24-31(1). State law also requires that notice of a proposed amendment to a zoning ordinance be sent to all owners of real property whose property is located in or within not less than two hundred feet (200') of the perimeter of the area proposed for change. See R.I. Gen. Laws § 45-24-53(c)(2). In contrast, the Ethics Commission has previously applied the opposite presumption of no financial impact in advisory opinions where the public official’s property is near but not abutting the subject property. See A.O. 2002-30 (opining that a Jamestown Town Council member could participate in the determination of a location for a highway garage, notwithstanding that two of the location options were 1000 and 900 feet away from her land); A.O. 2003-44 (opining that a member of the Cranston Town Council could participate in the Safety Services and Licensing Committee’s consideration of a proposed license for the Krispy Kreme Donut franchise, notwithstanding that the proposed location was approximately 500 feet from his residence in the absence of evidence indicating a reasonable foreseeability of financial impact). In the instant matter, the Club’s beach property neither adjoins, nor is within 200 feet of the nearest drop-off point. Rather, the Petitioner claims that the Club’s beach property is over 1000 feet away from the nearest drop-off point. See attached map. Furthermore, the Petitioner represented that the Club’s property is undeveloped and utilized solely for drainage of the excess storm water that washes over the beach barrier. Accordingly, since the Club is not an abutter to the drop-off points, there should be no presumption of a financial impact. Rather, based upon the past advisory opinions discussed above, absent any evidence indicating a reasonable foreseeability of financial impact on the Club, the Code of Ethics does not prohibit the Petitioner from participating in discussions and decision making relative to the drop-off points. Furthermore, the fact that some Club members own property abutting or in a close proximity to the rights-of-way does not prohibit the Petitioner under Code of Ethics from participating in the Town Council’s discussions and decision-making relative to the creation of beachgoer drop-off points near rights-of-way to Misquamicut and Watch Hill beaches. The Ethics Commission considered a somewhat analogous situation in Advisory Opinion 2003-4, where a member of the Westerly Town Council, who was also the Executive Director of the Misquamicut Business Association (“MBA”), sought advice as to whether he could participate in Town Council matters involving or financially impacting the MBA or any of its 180 members. The Commission first noted that the petitioner, as a business associate of the MBA, was prohibited by the Code from participating in any Town Council matters that either involved or financially impacted the MBA as an independent entity. Notwithstanding this finding, however, the Commission went on to opine that because the petitioner was not himself a business associate of each individual member of the MBA, he was not barred from participating in Town Council matters that involved or impacted individual members of the MBA. Similarly, in the instant matter the Petitioner is not a business associate of the individual members of the Club. Thus, the Petitioner is not prohibited by the Code of Ethics from participation in matters that involve such members. See also A.O. 2016-2 (opining that a member of the Providence City Council, who in his private capacity was the Director of Government Affairs for the Rhode Island Association of Realtors, was required to recuse from any City Council matters that either involve or financially impact the Association itself, but was not required to recuse from matters in which individual members of the Association appeared to testify or had financial interests). Contra A.O. 2012-13 (opining that a member of the Westerly Town Council must recuse from participation in the Town Council’s consideration of a resolution to fund a sewer expansion in the Misquamicut Beach area, given his employment by the Misquamicut Business Association (“MBA”) and the fact that three (3) businesses owned by members of the MBA’s Board of Directors (the petitioner’s hiring authority) were affected by the sewer expansion). Here, the Petitioner represents that neither he, the Club (his employer), nor any of the members having hiring authority over the Petitioner will be financially impacted by the Petitioner’s official actions relative to the creation of beachgoer drop-off points near paths to Misquamicut and Watch Hill beaches. Accordingly, based on all of the Petitioner’s representations and applying the reasoning of the prior advisory opinions to the instant question presented, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participation in the Town Council’s discussions and decision-making relative to the creation of beachgoer drop-off points near rights-of-way to Misquamicut and Watch Hill beaches. 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) Commission Regulation 36-14-6001 Other Related Authority: § 45-24-31(1) § 45-24-53(c)(2) Related Advisory Opinions: A.O. 2016-2 A.O. 2012-13 A.O. 2012-4 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 A.O. 2003-44 A.O. 2003-4 A.O. 2002-30 Keywords: Business Associate Membership Private Employment