Advisory Opinion No. 2019-33 Rhode Island Ethics Commission Advisory Opinion No. 2019-33 Approved: May 21, 2019 Re: Gary S. Ezovski QUESTION PRESENTED: The Petitioner, Town Administrator for the Town of North Smithfield, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon him, given that Econox Renewables intends to petition the North Smithfield Planning and Zoning Boards for a special use permit required for the installation and operation of a solar power generator station on land owned by the Petitioner. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s business associate, Econox Renewables, from petitioning the North Smithfield Planning and Zoning Boards for a special use permit to install and operate a solar power generator station on land that is owned by the Petitioner. Although the Petitioner and Econox are business associates under the Code of Ethics, the Petitioner is neither a member of nor employed by the Planning or Zoning Boards, and does not have a role in their decision-making regarding applications for special use permits. Further, the Petitioner is not appearing or representing himself before either the Planning or Zoning Boards. The Petitioner is the Town Administrator (“Administrator”) for the Town of North Smithfield (“Town”). Originally elected to the position in 2016, he ran unopposed and was reelected in 2018. His current term expires December 1, 2020, and he states that he will not seek re-election. Prior to being elected Administrator, the Petitioner served the Town in several other capacities, including memberships on the Sewer Commission, Fire Study Commission, Water Authority, Planning Board and, most recently from 1999 through 2006, the School Committee. The Petitioner states that, in or about 2000, he purchased an option to buy a 30-acre parcel of land on Greenville Road (“parcel”) for future commercial development. The Petitioner further states that, in 2004, he purchased the parcel. He represents that he is the sole owner and only member of Grand Banks Commerce Park LLC (“GBCP”), a real estate holding company created solely for the parcel. The Petitioner further represents that, in March of 2016, Econox Renewables (“Econox”) expressed an interest in leasing the parcel to install and operate a solar power generating station (“Solar Project”). The Petitioner explains that he and Econox signed a letter of intent at the time, with the drafting and execution of a lease contingent upon Econox being able to use the parcel for the Solar Project. He states that the land adjoining the parcel is privately owned by two parties and is the subject of a separate solar project by Green Development with which neither the Petitioner nor Econox is involved. The Petitioner represents that, in March of 2019, Econox advised him of its intent to apply to the North Smithfield Planning Board (“Planning Board”) and the North Smithfield Zoning Board (“Zoning Board”) for a special use permit to move the Solar Project forward. He adds that Econox filed the application for the special use permit, which the Petitioner signed in his capacity as the owner of GBCP, which owns the parcel. The members of the Planning Board are appointed by the North Smithfield Town Council (“Town Council”). The Town Planner (“Planner”) is hired and supervised by the Town Administrator. The Planner is not a member of the Planning Board and does not vote on matters before the Planning Board. The Planner describes his involvement in the processing of special use permit applications as accepting the applications from individuals and entities, reviewing them for completeness, and examining them for consistencies/inconsistencies with the Town’s Comprehensive Plan. He adds that he then drafts an opinion to present to the Planning Board about which he will answer questions at a hearing. The Petitioner and the Town Planner state that the Town Administrator has no role in the processing of special use permits. The Planner states that Econox’s application for a special use permit was presented to the Planning Board on April 4, 2019 (“April meeting”), at which time the Planning Board voted unanimously to authorize the Planner to write a Positive Finding of Fact Decision for approval.[1] The Planner explains that, following the review of Econox’s application by the Planning Board, the matter will next go before the Zoning Board. The members of the Zoning Board are appointed by the Town Council. The Town Building and Zoning Official (“Building and Zoning Official”) is hired and supervised by the Town Administrator. The Building and Zoning Official is not a member of the Zoning Board and does not vote on matters before the Zoning Board. The Building and Zoning Official explains that he accepts applications from individuals and entities, reviews them for completeness, and then presents those applications to the Zoning Board for determination. He further explains that, although he attends Zoning Board meetings and answers questions from its members, he makes no recommendations to the Zoning Board on the application of a special use permit. The Petitioner and the Building and Zoning Official state that the Town Administrator has no role in the processing of special use permits. The Petitioner states that he advised the Town Council President of his association with Econox and asked the Town Council President to step in as necessary in the unlikely event that the Planner and/or Building and Zoning Official wish to consult relative to Econox’s application for a special use permit. The Petitioner further states that he then notified the Planner and the Building and Zoning Official that applications on which the Petitioner cannot be involved would soon be received from Econox for a project to be located on land owned by the Petitioner’s business enterprise, and that should either the Planner or the Building and Zoning Official wish to consult with respect to the administration of their respective duties as regards Econox, they should address their requests to the Town Council President and not the Petitioner. The Petitioner adds that neither he nor anyone on his behalf will attend any meetings before the Planning or Zoning Boards involving the Econox application. The Planner and the Building and Zoning Official each represent that Econox is the applicant for the subject special use permit, not the Petitioner. The Planner further represents that he would have no reason to communicate with the Petitioner in his capacity as the owner of the parcel, as any of his communications about the Econox application would be directed to Econox, its engineer, or its attorney. Interest in Substantial Conflict with Proper Discharge of Public Duties Under the Code of Ethics, a public official may not participate in any matter in which he has an 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. 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). A “business associate” is defined as an individual or business entity joined together with another person to achieve a common financial objective. Section 36-14-2(3), (7). Because the Petitioner owns the land that Econox wishes to lease to install and operate the Solar Project, the two are business associates under the Code of Ethics. See, A.O. 2001-57 (opining that a Central Falls City Councilor could not participate in matters that would have a financial impact upon his tenants, who were his business associates under the Code of Ethics). Additionally, the Petitioner has a financial interest in Econox’s special use permit application to the Planning and Zoning Boards. That notwithstanding, the Petitioner’s financial interest is not in substantial conflict with the proper discharge of his duties in the public interest because, for the reasons outlined in detail below, the Petitioner has no reason to believe or expect that he or Econox will be financially impacted as the result of any official activity by the Petitioner. Contra, A.O. 2003-30 (opining that the Principal Sanitary Engineer with the Department of Environmental Management (DEM) could not participate in the approval of administration of financing for projects that would have a financial impact on property that he owned). It is therefore the opinion of the Ethics Commission that, based on the facts as represented by the Petitioner, and by the Planner and the Building and Zoning Official as outlined below, sections 5(a) and 7(a) do not apply in the instant matter. Prohibition Against Use of Public Office / Confidential Information for Financial Gain 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 member, his business associate, or any person by whom he is employed or whom he represents. Section 36-14-5(d). The Petitioner represents that he has not used his public office, or confidential information received through his public office, to obtain financial gain for himself or for Econox; nor do any of the facts as represented suggest otherwise. Further, the Petitioner states that, in his capacity as Town Administrator, he has no role in the processing of special use permit applications. With the permission of the Town Council President, the Petitioner has instructed both the Planner and the Building and Zoning Official not to speak with him about the Econox application for a special use permit, but to instead direct any necessary communication associated therewith to the Town Council President. It is the opinion of the Ethics Commission that there is no indication that the Petitioner has used his public office, or confidential information received through his public office, to obtain financial gain for himself or for Econox; nor is he positioned to do so given that he has no role in the processing of special use permit applications. Recusal When Business Associate Appears Before Municipal Agency of which one is a Member or by which one is Employed A public official must recuse from participation in any matter in which his business associate or employer appears or presents evidence or arguments before the municipal agency of which he is a member or by which he is employed. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”); section 36-14-5(f). In Advisory Opinion 2019-28, a member of the Providence City Council, who in her private capacity was an attorney with Handy Law, LLC, was prohibited by the Code of Ethics from participating in City Council matters in which her employer, her business associate, and/or any representative of her business associate appeared, and was further prohibited from participating in City Council matters which financially impacted her employer and/or her business associate. Here, Econox intends to appear before the Planning and Zoning Boards in pursuit of the special use permit for which it has applied; however, the Petitioner is neither a member of nor employed by either the Planning or Zoning Boards, nor would he participate in the processing of a special use permit application before either. Nonetheless, the Petitioner has, with the permission of the Town Council President, instructed the Planner and the Building and Zoning Official not to communicate with him about the Econox application, but to instead direct any necessary communication related thereto to the Town Council President. The Petitioner has also represented that neither he nor anyone on his behalf will attend any meetings before the Planning or Zoning Boards at which the Econox application will be presented. It is the opinion of the Ethics Commission that Regulation 1.2.1 and section 36-14-5(f) do not apply in the instant matter because the Petitioner is neither a member of nor employed by the Planning or Zoning Boards, and he does not have a role in their decision-making regarding applications for special use permits. Representing Self before Municipal Agency of which one is a Member, by which one is Employed, or for which one is the Appointing Authority The Code of Ethics 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 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). A person represents himself or another person before an agency when he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency. Section 36-14-2(12) & (13); Regulation 1.1.4 (A)(1) & (2). Here, the Petitioner is not representing himself or authorizing another person to appear on his behalf before either the Planning or Zoning Boards. Although the Petitioner’s name appears on the application in his capacity as the owner of the parcel, both the Planner and the Building and Zoning Official have stated that Econox is the applicant seeking the special use permit, not the Petitioner. Even if the Petitioner were to be considered an applicant for the special use permit (under which circumstances the application could be considered the presentation of evidence before the Planning and Zoning Boards for purposes of influencing the judgement of both to grant it), the Petitioner is neither a member of nor employed by the Planning or Zoning Boards; nor is he the appointing authority for either. It is therefore the opinion of the Ethics Commission that section 5(e)(1) and Regulation 1.1.4 do not apply in the instant matter. 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) § 36-14-2(12) § 36-14-2(13) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2019-28 A.O. 2003-30 A.O. 2001-57 Keywords: Business Associate Conflict of Interest