Advisory Opinion No. 2018-46 Rhode Island Ethics Commission Advisory Opinion No. 2018-46 Approved: September 11, 2018 Re: John F. Mahoney QUESTION PRESENTED: The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his wife from appearing before the Hope Village Overlay Committee, the Scituate Planning Board of Review and/or the Scituate Zoning Board of Review, over which the Town Council has appointing authority, to obtain approval to establish an early learning center on property located in the Town of Scituate. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner’s wife is not prohibited by the Code of Ethics from appearing before the Hope Village Overlay Committee, the Scituate Planning Board of Review, and/or the Scituate Zoning Board of Review, over which the Town Council has appointing authority, to obtain approval to establish an early learning center on property located in the Town of Scituate. The Petitioner is a member of the Scituate Town Council (“Town Council”), having been elected to that position in November 2016. He represents that his wife purchased property located at 16 Hope Furnace Road in Hope, Rhode Island, six months ago, on which she intends to establish a business called Little Imaginations Early Learning Center, LLC (“Little Imaginations”). The Petitioner states that the property is located on the border of Coventry and Scituate. He explained that the rear portion of the land is in Coventry, while the building on the land is in Scituate. He represents that his wife appeared before the Coventry Zoning Board and Planning Board of Review in July 2018 to obtain a special use permit for additional parking at the rear of the property which she received. The Petitioner informs that his wife must now appear before the Hope Village Overlay Committee (“Overlay Committee”) and then the Scituate Planning Board (“Planning Board”) and/or Scituate Zoning Board of Review (“Zoning Board of Review”) to obtain approval to use the building on the land to operate an early learning center. The Petitioner represents that his wife borrowed the funds in her name only from a third party to purchase the property and start the business. He states that his wife will be the sole owner of the business and that he has no financial interest or involvement in the property or the business. The Petitioner informs that he received an email from the Chair of the Overlay Committee stating that the Petitioner must obtain an advisory opinion before the Overlay Committee will consider his wife’s petition. Given the above representations, the Petitioner seeks the advice of the Ethics Commission as to whether his wife may appear before the Overlay Committee, the Planning Board and/or the Zoning Board of Review, over which the Town Council has appointing authority, to obtain approval to establish an early learning center on property she purchased in the Town of Scituate. 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 a public 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). The Code of Ethics also 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 business by which he is employed or which he represents. Section 36-14-5(d). Any person within his family includes “a spouse.” Section 36-14-2(1). Additionally, section 5(e) of the Code of Ethics provides that the Petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1) (“Regulation 5016”).[1] Public officials are also prohibited from authorizing another person to appear on their behalf before a state or municipal agency of which they are a member or by which they are employed. Regulation 5016(a)(2). These prohibitions include matters before another agency over which the public official sits as a member of the appointing authority. Regulation 5016(a)(3). Section 5(e)’s prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(4). In Advisory Opinion 2012-30, the petitioner, the Superintendent of State Piers for the Rhode Island Department of Environmental Management (“DEM”), sought guidance from the Commission regarding whether the Code of Ethics restricted his wife from entering into a lease with DEM, given that he was a DEM employee and worked in and was responsible for the day-to-day operations of the same port where the store was located. The petitioner’s wife wished to purchase a store on land owned by DEM. The purchase of the store was contingent on the petitioner’s wife entering into a lease for the underlying land with DEM. The Commission opined that the Code of Ethics did not prohibit the wife from entering into the lease with DEM based on petitioner’s representations that his work was limited to the maintenance and supervision of the state piers and their use by commercial vessels, that he had no involvement, oversight, or authority over the management of DEM land leases in the port where the store was located, nor would he have any involvement in the day-to-day operations of his wife’s store, which would be managed and operated by his wife. Additionally, the petitioner represented that he would not appear before DEM or represent himself or his wife before DEM. In the present matter, the Petitioner represents that he has no financial interest in the property his wife purchased or the business she is establishing thereon. He informs that he will not be involved in the day-to-day operations or management of his wife’s business. The Petitioner states that all funding that his wife has obtained for this purpose is in her name only, as is the business itself. The Petitioner represents that he will not appear before the Overlay Committee, Planning Board, Zoning Board of Review, or the Town Council to represent his wife in this matter. Accordingly, after considering all of the representations made herein, as well as our review of past advisory opinions, it is the opinion of the Ethics Commission that the Petitioner’s wife is not prohibited by the Code of Ethics from appearing before the Overlay Committee, the Planning Board, or the Zoning Board of Review, over which the Town Council has appointing authority, to obtain approval to establish an early learning center on property located in the Town of Scituate. However, the Petitioner is advised to remain vigilant in identifying any matters coming before the Town Council that would have the potential to financially impact his wife and her business and to be cognizant of any time his wife or her business interests appear before the Town Council. In all such cases, the Petitioner should either recuse from participation or seek additional guidance from the Ethics Commission. Notices of recusal must be filed with the Ethics Commission in accordance with 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: § 36-14-2 § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5016 Related Advisory Opinions: 2012-30 Keywords: Appointing Authority Financial Interest