Advisory Opinion No. 2018-43 Rhode Island Ethics Commission Advisory Opinion No. 2018-43 Approved: July 17, 2018 Re: Christopher Willi QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Town Council, a municipal elected position, requests an advisory opinion as to whether, upon recusal, he may attend and speak at public hearings before the New Shoreham Town Council and/or other New Shoreham Town Boards regarding a proposed “Town Employee Housing Initiative” that would be developed on a property that directly abuts his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham Town Council, a municipal elected position, may, upon recusal, attend and speak at public hearings before the New Shoreham Town Council and/or other New Shoreham Town Boards regarding a proposed “Town Employee Housing Initiative” that would be developed on a property that directly abuts his personal residence. The Petitioner is a member of the New Shoreham Town Council (“Town Council”). The Petitioner represents that his personal residence abuts a lot owned by the Town of New Shoreham, also known as Block Island (“Town” or “Block Island”), on which the Town has proposed the construction of one or more family dwellings and the renovation of an existing residence to be utilized as housing for executive town employees under a “Town Employee Housing Initiative” (“Initiative”). The Petitioner states that the Initiative is under the direction of the Town Manager and requires the consent and authorization of the Town Council. Furthermore, he notes that the Town Council and the Town Manager are expected to hold public meetings to discuss the Initiative. The Petitioner represents that he will recuse himself from participation in the Town Council’s discussions and voting on the Initiative but seeks guidance from the Ethics Commission as to whether he may speak at public hearings before the Town Council and/or other Town Boards regarding the Initiative. 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). An official 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 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). Furthermore, section 36-14-5(d) prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, a family member, a business associate or an employer. The Code of Ethics also prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed or for which he is the appointing authority. Section 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1), (2) & (3)[1]. However, the Code of Ethics contains a “Public Forum Exception” which provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child. Commission Regulation 36-14-7003[2]. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O 2017-11 (opining that the Chairperson of the North Providence Historic District Commission (“HDC”) could address the HDC during its application review concerning a property abutting her residence, as long as the petitioner did not receive access or priority not available to any other member of the public); 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). 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 Town Council and/or other Town Boards regarding a proposed “Town Employee Housing Initiative” that would be developed on a property that directly abuts his personal 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 he may not use his position in any way to influence members of the Town Council and/or members of other Town Boards. 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 Town Council 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 36-14-5016 Commission Regulation 36-14-7003 Related Advisory Opinions: A.O. 2017-11 A.O. 2006-37 A.O. 2005-16 A.O. 2003-15 Keywords: Public Forum Exception Property Interest [1]In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 36-14-5016(a)(1), (2) & (3) now corresponds to Regulation 520-RICR-00-00-1.1.4(A)(1)(a), (b) & (c). [2] Regulation 36-14-7003 now corresponds to Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003).