Advisory Opinion No. 2019-46 Rhode Island Ethics Commission Advisory Opinion No. 2019-46 Approved: August 20, 2019 Re: Edward Gromada QUESTION PRESENTED: The Petitioner, a member of the Jamestown Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Zoning Board’s discussions and decision-making relative to a matter involving the Jamestown Historical Society, given that his wife is a member of the Board of Trustees for that entity. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Zoning Board of Review, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Zoning Board’s discussions and decision-making relative to a matter involving the Jamestown Historical Society, notwithstanding that his wife is a member of the Board of Trustees for that entity. The Petitioner was appointed to the Jamestown Zoning Board (“Zoning Board”) in 2014. He states that the Zoning Board has seven members and no alternates, and that a quorum of five members is required for each meeting and for the consideration of each matter. The Petitioner further states that on April 24, 2018, he participated in a hearing and decision concerning a request by a local married couple (“the couple”) for dimensional relief in order to build an addition to their home. He explains that the couple’s home abuts property owned by the Jamestown Historical Society (“Historical Society”), a private entity that opposed the addition. He adds that, at the time, his wife was a member of the Historical Society but did not serve on its Board of Trustees. The Petitioner represents that at the April 24, 2018 hearing, two of the seven members of the Zoning Board recused themselves in light of their leadership positions with the Historical Society, and the remaining five members of the Zoning Board, including the Petitioner, heard the matter. The Petitioner further represents that the couple’s application was denied by a vote of four to one.[1] The Petitioner explains that the couple appealed to the Rhode Island Superior Court (“Superior Court”), naming the Zoning Board and the Historical Society as defendants. On April 8, 2019, the Superior Court remanded the case to the Zoning Board for findings of fact and conclusions of law. The Petitioner states that approximately six months ago his wife went from being a general member of the Historical Society to a member of its Board of Trustees. He adds that, of the two Zoning Board members who had recused themselves in April of 2018, one has since left the Zoning Board. The Petitioner explains that, while the new member who replaced the departing member has no conflict of interest in the matter, the new member did not participate at the hearing on April 24, 2018 and, thus, may not participate in the matter on remand. He further explains that the second Zoning Board member who recused from participation in the matter in April of 2018 is expected to recuse when the matter is heard on remand. The Petitioner represents that, in the event that his own participation in the matter on remand is determined to be a conflict of interest, the absence of a quorum will require the couple to begin the entire process of seeking relief again. He adds that when the Zoning Board considers the matter on remand, no new testimony is anticipated from anyone, and that he would be able to participate in the Zoning Board’s consideration of the findings of fact and conclusions of law in a fair and objective manner.[2] 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 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). The Code 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 member, his business associate, or any person by whom he is employed or whom he represents. Section 36-14-5(d). Finally, a public official must recuse himself from any matter in which a person within his family or his business associate appears before the municipal agency of which he is a member. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”); Section 36-14-5(f); Commission Regulation 520-RICR-00-00-1.2.1(A)(1)&(2) Additional Circumstances Warranting Recusal (36-14-5002). A “person within his . . . family” includes the official’s spouse. Section 36-14-2(1); Regulation 1.3.1(A)(2). 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). The Ethics Commission has consistently concluded that public officials are “business associates” of entities, including non-profit organizations, for which they serve either as members of the Board of Directors or Trustees or in other leadership positions that permit them to affect the financial objectives of the organization. See, e.g. , A.O. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts and was, thus, required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests); A.O. 2009-10 (opining that a member of the Middletown Town Council was required to recuse from matters concerning the Middletown Historical Society, given that she was the Treasurer of the Historical Society, and thus its business associate.) The Ethics Commission has also concluded that a public official is not required to recuse from matters that cause a financial impact solely upon his family member’s business associate without a corresponding financial impact upon his family member. See A.O. 2013-33 (opining that a member of the Cumberland Town Council was not prohibited by the Code of Ethics from participating when an attorney who was his spouse’s business associate represented another person before the Town Council); A.O. 2002-41 (opining that a Westerly Town Council member could participate in the consideration of matters involving an individual with whom his father had business dealings in a real estate broker/client relationship, as the Petitioner’s relationship with the individual was too remote to trigger the prohibitions set forth in the Code of Ethics). Here, the Petitioner’s wife is a business associate of the Historical Society, given that she is a member of its Board of Trustees. While the Petitioner’s wife is a business associate of the Historical Society, the Petitioner is not, and there is no indication that the Petitioner’s official actions will have any direct financial impact upon his wife. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of the matter that has been remanded by the Superior Court, notwithstanding that the Petitioner’s wife is a business associate of the Historical Society, a named defendant in the 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(1) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2014-14 A.O. 2013-33 A.O. 2009-10 A.O. 2002-41 Keywords: Business Associate Family Member [1] The Petitioner was the sole Zoning Board member who voted to allow the relief requested. [2] The Zoning Board was to have acted on the remand at their meeting on July 23, 2019. The matter was postponed pending the issuance of the advisory opinion requested by the Petitioner.