Advisory Opinion No. 2018-41 Rhode Island Ethics Commission Advisory Opinion No. 2018-41 Approved: July 17, 2018 Re: André Boudreau QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Town Council serving as the Second Warden, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Town Council’s decision-making relative to issuance of a Hawkers and Peddlers License to an applicant who operates a food truck on Block Island, given that the Petitioner also operates a food truck on Block Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham Town Council serving as the Second Warden, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s decision-making relative to issuance of a Hawkers and Peddlers License to an applicant who operates a food truck on Block Island, notwithstanding that the Petitioner also operates a food truck on Block Island, given the Petitioner’s representations that the two food trucks are not in competition. The Petitioner is a member of the New Shoreham Town Council (“Town Council”) serving as the Second Warden. In his private capacity he owns and operates Southeast Light Delights, a food trailer (“food truck”)[1] located on the grounds of the Southeast Lighthouse in New Shoreham, also known as Block Island, offering lobster rolls, hot dogs, cold drinks and soft serve ice cream. In order to operate his food truck, the Petitioner must annually apply for and obtain a Hawkers and Peddlers License from the Town Council. The Petitioner’s license restricts his food truck operation to its current location, so that the Petitioner may not relocate his food truck without obtaining a special one-day permit from the Town Council to do so. The Petitioner states that currently pending before the Town Council is an application to renew a Hawkers and Peddlers License filed by Carole Payne (“Payne”), who operates Payne’s Killer Donuts from a trailer (“food truck”) located near New Harbor, offering donuts, coffee, cold drinks and soft serve ice cream. The Petitioner notes that Payne’s food truck is connected to a sewer line and, therefore, does not move to different locations on Block Island. The Petitioner states that his food truck, known primarily for its lobster rolls, does not compete with Payne’s food truck, which specializes in donuts. He also represents that the trucks are located approximately four miles apart by road, further reducing the likelihood of competition between the trucks for cold drinks or ice cream products. Given these representations, the Petitioner asks whether the Code of Ethics permits his participation in Payne’s application to renew her Hawkers and Peddlers License. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. Section 36-14-7(a). He is also prohibited from using his public position or confidential information received through his position to obtain financial gain, for himself or a family member, employer or business associates, other than that provided by law. Section 36-14-5(d). The Commission has previously opined that a public official is required to recuse himself from participation and/or vote on any matter in which he has a business or financial interest, or which involves the financial interests of a direct competitor that is in reasonably close proximity to the official’s own business. See, e.g., A.O. 2017-32 (Newport Planning Board member was required to recuse from participation in matters before the Planning Board involving hotels or other short-term rental properties that were in close proximity to, or direct competition with, the boutique hotel she was helping to develop); A.O. 2004-38 (member of New Shoreham Town Council, who worked at a restaurant with a liquor license, must recuse on any liquor licensing matters that were likely to result in a direct financial impact upon his employer or on its direct competitors, as such matters were also likely to financially impact the petitioner’s employer); A.O. 2002-23 (CRMC member who was an owner of Brown & Howard Wharf Marina on Newport Harbor may not participate in CRMC matters pertaining to Waites Wharf, a competitor within 1,500 feet of the petitioner’s property); A.O. 99-9 (Narragansett Town Councilor who owned a restaurant holding a liquor license could not participate in matters directly affecting his business, and further advising that a direct financial impact was presumed in matters involving establishments within a close proximity to or otherwise in direct competition with his restaurant); A.O. 96-101 (Chief of Police for City of Pawtucket, who was also a part-owner of a Pawtucket establishment holding a Class B liquor license, must recuse on liquor enforcement activities affecting his own establishment and any of its direct competitors); A.O. 96-70 (requiring Newport City Councilor/Board of License Commissioner who owned a restaurant holding liquor license to recuse himself from zoning or licensing matters that concerned competitors); A.O. 96-24 (recognizing that an Alternate Member of the Newport Zoning Board of Review who was part owner and operator of a hotel and landlord to a restaurant and dance club, may not participate in matters affecting other hotels or matters affecting restaurant, dance clubs, or bed and breakfasts that were located within 500 feet of the petitioner’s businesses). However, the Commission has also opined that recusal is not required from matters involving similar businesses which are not in close proximity to the public official’s own business, or where the two businesses are otherwise not in competition. See A.O. 2004-13 (Scituate Town Councilor who leased his property to persons running a family restaurant with a Class BV liquor license may participate in Town’s issuance of a Class C liquor license for a saloon located three miles from Councilor’s property); A.O. 2000-62 (concluding, inter alia, that Providence Tourism Council Deputy Director, also a minority stockholder in a Providence restaurant, may participate in matters involving the restaurant industry in Providence, or individual members of that industry, provided that such matters did not directly impact his restaurant and/or his personal financial interests). In the instant matter, the Petitioner represents that his food truck is not in competition with the applicant’s food truck, given the considerable distance between the trucks’ fixed locations and the differences in the types of food offered. Based on these representations, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not require the Petitioner’s recusal from Payne’s application for a Hawkers and Peddlers License. However, if circumstances change such that the trucks become significantly closer in proximity or otherwise become competitive with one another, the Petitioner should seek additional guidance from the Ethics Commission or recuse from participation in future license applications from this applicant 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) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2017-32 A.O. 2004-38 A.O. 2004-13 A.O. 2002-23 A.O. 2000-62 A.O. 99-9 A.O. 96-101 A.O. 96-70 A.O. 96-24 Keywords: Competitors