Advisory Opinion No. 2019-41 Rhode Island Ethics Commission Advisory Opinion No. 2019-41 Approved: July 16, 2019 Re: M. Theresa Santos QUESTION PRESENTED: The Petitioner, a member of the Middletown Town Council, a municipal elected position, requests an advisory opinion regarding whether she may attend and speak at public hearings before the Middletown Planning Board and/or, potentially, the Zoning Board regarding a proposed development of property located across the street from her personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Middletown Town Council, a municipal elected position, may attend and speak at public hearings before the Middletown Planning Board and/or, potentially, the Zoning Board regarding a proposed development of property located across the street from her personal residence. The Petitioner is a member of the Middletown Town Council (“Town Council”) which has appointing authority over the Middletown Planning and Zoning Boards. She represents that she has served in that capacity from 2000 to 2010 and from 2014 to present. The Petitioner further represents that she received an abutter’s notice regarding a proposed development of a former farmland located across the street from her primary residence, where she has lived since 1953. She explains that the proposed development intends to divide the farmland into six residential lots. The Petitioner states that the Planning Board has scheduled the matter for a public hearing on July 10, 2019, and that it is possible that the matter may also go before the Zoning Board for review in the future. Based on this set of facts, the Petitioner seeks the guidance of the Ethics Commission regarding whether she is prohibited by the Code of Ethics from appearing and voicing her concerns, as an abutting property owner relative to the proposed development, before the Planning and/or Zoning Boards during their public comment sections. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 her official duties if she 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, her family member, business associate, or any business by which the public official is employed or which she represents. Section 36-14-7(a). Furthermore, section 36-14-5(d) prohibits a public official from using her position or confidential information received though her public position to obtain financial gain, other than that provided by law, for herself, her family member, business associate or employer. The Code of Ethics also prohibits a public official from representing herself or authorizing another person to appear on her behalf before a state or municipal agency of which she is a member, by which she is employed or for which she is the appointing authority. Section 36-14-5(e)(1); Commission Regulation 520-RICR-00-00-1.1.4(A)(1)(a), (b) & (c) Representing Oneself or Others, Defined (36-14-5016). However, the Code of Ethics contains a “Public Forum Exception” which provides that a public official may publicly express her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or her spouse or dependent child. Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Code’s “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. 2003-15 (opining that a member of the Scituate Town Council could, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he was an abutter, provided that he did not receive special access or priority not available to any other member of the public). Consistent with these prior advisory opinions, and pursuant to the Public Forum Exception found at Regulation 520-RICR-00-00-1.2.3, it is the opinion of the Ethics Commission that the Petitioner, in her capacity as an abutting landowner, may address the Planning and/or Zoning Boards regarding a proposed development of property located across the street from her 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 she may not use her position in any way to influence members of the Planning and/or Zoning Boards. See section 36-14-5(d). Finally, should any aspect of this proposed development come before the Town Council, the Petitioner must recuse from participation and voting on the matter 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) § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Related Advisory Opinions: A.O. 2017-11 A.O. 2003-15 Keywords: Public Forum Exception Property Interest