Advisory Opinion No. 2019-4 Rhode Island Ethics Commission Advisory Opinion No. 2019-4 Approved: January 8, 2019 Re: Larry Anderson QUESTION PRESENTED: The Petitioner, a member of the Little Compton Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s discussions and decision-making relative to a pending litigation matter given that, while he is currently neither a party nor a participant in the litigation, it is reasonably foreseeable that he could be financially impacted by it. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Little Compton Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in the Town Council’s discussions and decision-making relative to a pending litigation matter, given that it is reasonably foreseeable that he could be financially impacted by it even though he is currently neither a party nor participant to the litigation. The Petitioner was elected to the Little Compton Town Council (“Town Council”) on November 6, 2018. He explains that since the summer of 2015, there has been a degree of public controversy surrounding certain activities at Carolyn’s Sakonnet Vineyard (“Vineyard”) in the Town of Little Compton (“Town”). Such activities include a series of summer musical concerts, weddings, and wedding receptions. The Petitioner notes that the Vineyard is owned by Dionysus Acquisitions LLC and Sakonnet Vineyards LLC, which purchased it in 2012. The Petitioner states that some Town residents, including himself, have expressed their concerns and objections before various town and state officials regarding whether the intensified entertainment activities at the Vineyard comply with municipal and state law and any conservation restrictions on portions of the Vineyard’s property. The Petitioner represents that he became acquainted with Natalie and Brian Eliason (“the Eliasons”) and Christina Carlson (“Ms. Carlson”) who are neighbors and/or abutters to the Vineyard. The Petitioner explains that in 2016 the Eliasons, later joined by Ms. Carlson, retained attorneys Christopher D’Ovidio and Jennifer Cervenka to assist them in seeking relief and remedies from the effects of the Vineyard activities on their property and everyday lives. The Petitioner states that in June 2017, the Eliasons and Ms. Carlson filed a lawsuit in Rhode Island Superior Court against the Town Council, the Town Council members in their official capacities, and the owners of the Vineyard. The Petitioner represents that from 2016 until his declaration of candidacy for Town Council, he supported and worked closely with the Eliasons, Ms. Carlson and their attorneys. The Petitioner explains that his support included financial contributions, organization and administration of public fundraising, and research and other assistance to the attorneys. The Petitioner represents that the litigation is still ongoing and the owners of the Vineyard have filed a counterclaim against the Eliasons and Ms. Carlson, seeking “interest, costs, attorneys’ fees, and punitive damages.” The Petitioner points out that the counterclaimants have reserved the right to amend the counterclaim to add to the action, as third-party defendants, persons who have provided financial support and funding to the litigation, designating those persons as John Does 1 through 10. The Petitioner believes that, due to his financial and public support of the Eliasons and Ms. Carlson, as well as his individual public commentary and advocacy, he may well be considered among the “John Does 1 through 10” described but not named in the counterclaim. The Petitioner states that to the extent that he might be one of the potential unnamed John Does included in the counterclaim, it is possible that the outcome of the litigation could result in a direct financial impact upon him. Given this set of facts the Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from participating in the Town Council’s discussions and decision-making relative to matters concerning the pending litigation by the Eliasons and Ms. Carlson against the Town Council, the Town Council members in their official capacity, and the owners of the Vineyard. 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 an 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 public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest need not be certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 - Reasonable Foreseeability (36-14-7001).[1] Additionally, the Code 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, business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Here, the Petitioner represents that unless and until the litigation is resolved by a settlement and/or court order, he remains a potential counterclaim defendant, in which case the litigation could result in a direct financial impact upon him. Accordingly, based on the Petitioner’s representations, provisions of the Code of Ethics, and previous advisory opinions it is the opinion of the Ethics Commission that the Petitioner is prohibited under the Code of Ethics from participating in discussions and decision-making relative to matters concerning the pending litigation against the Vineyard, given that it is reasonably foreseeable that he would be financially impacted by the outcome of the litigation. See A.O. 2011-37 (opining that a member of the Charlestown Town Council was required to recuse from Town Council discussions and decision-making relative to a pending litigation matter which were likely to result in a financial benefit or detriment to her); A.O. 2003-12 (East Greenwich Town Council member was prohibited from participating in consideration of a zoning matter involving a real estate development, given that it was reasonably foreseeable that the petitioner’s brother-in-law would seek and obtain the listing for said development). Notice of recusal shall be filed with the Ethics Commission in accordance with § 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). 520-RICR-00-00-1.1.5 Related Advisory Opinions: A.O. 2011-37 A.O. 2003-12 Keywords: Litigation Recusal [1] Formerly Commission Regulation 36-14-7001 - Reasonable Foreseeability.