Advisory Opinion No. 2019-48 Rhode Island Ethics Commission Advisory Opinion No. 2019-48 Approved: August 20, 2019 Re: Rosemary Enright QUESTION PRESENTED: The Petitioner, a member of the Jamestown Planning Commission, a municipal appointed position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in the Planning Commission’s discussions and decision-making relative to a proposed development located on property that abuts a building rented by the Jamestown Historical Society, for which the Petitioner is the Treasurer. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Jamestown Planning Commission, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Planning Commission’s discussions and decision-making relative to a proposed development located on property that abuts a building rented by the Jamestown Historical Society, for which the Petitioner is the Treasurer. The Petitioner is a member of the Jamestown Planning Commission (“Planning Commission”). In her private capacity, she is the Treasurer of the Jamestown Historical Society (“Historical Society”). The Petitioner represents that, in 2006, the Historical Society signed a 99-year lease with the Town of Jamestown (“Town”) for the rental of a building that houses the Historical Society’s museum. The Petitioner further represents that, under the terms of the lease agreement, the Historical Society pays fixed rent and is obligated to maintain the building. The Petitioner states that before the Planning Commission for review is a proposed development of a property located within the 200-feet area of the Historical Society’s museum, requiring abutter’s notice. The Petitioner states that, because the Historical Society is not the owner of record, it did not receive notice as an abutter for the hearings before the Planning Commission. The Petitioner represents that the proposed development would not financially impact the Historical Society, as the rent under its lease is fixed, adding that the Historical Society is not planning to appear before the Planning Commission or offer any written testimony. Based on this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether she is prohibited by the Code of Ethics from participating in the Planning Commission’s discussions and decision-making relative to the proposed development. 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 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 she, any person within her family, her business associate or any business by which she is employed or which she represents will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). The Code of Ethics also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family member, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Additionally, a public official must recuse from participation when her business associate appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002); section 36-14-5(f). The Code of Ethics defines business associates as individuals or entities joined together to “achieve a common financial objective.” Section 36-14-2(3). In the past, the Ethics Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or as officers or in other leadership positions that permit them to affect the financial objectives of the organization. See 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 a the Treasurer of the Historical Society, and thus its business associate); A.O. 2000-74 (concluding that Housing Authority Commissioners may not participate in that Authority’s consideration of the Westerly Housing Association’s funding request, because, as members of the Board of Directors of the Housing Association, the Commissioners had a business association with it). Accordingly, the Petitioner is considered a business associate of the Historical Society for purposes of the Code of Ethics. In matters involving real property, the Ethics Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See, e.g., A.O. 2016-13; A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. Applying this presumption, the Ethics Commission has often opined that public officials may not participate in the discussions or vote on decisions concerning property which abuts that owned by a public official, or her business associate, absent reliable evidence that the official action would not affect the financial interests of the public official or her business associate, whether positively or negatively. In Advisory Opinion 2013-19, the Ethics Commission opined that a Westerly Zoning Board member was not prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of a matter involving a property abutting his former daughter-in-law’s property. The Ethics Commission based its opinion on the fact that a former daughter-in-law is not a person within the public official’s family, and also that the petitioner’s minor grandchildren did not have ownership in their mother’s property and, thus, were not legal abutters. Therefore, the Ethics Commission concluded that the petitioner’s familial relationship with his grandchildren did not trigger the prohibitions of the Code of Ethics requiring his recusal from the matter because his grandchildren were not parties or participants in the matter and would not have been directly financially impacted by the Zoning Board’s decision. Similarly, here the Historical Society does not have an ownership interest in the leased property, thus, it is not a legal abutter to the development. Furthermore, the Petitioner represents that the proposed development would not financially impact the Historical Society and that the Historical Society is not planning to appear before the Planning Commission or offer any written testimony. Accordingly, based on the above representations and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Planning Commission’s discussions and decision-making relative to a proposed development located on property that abuts a building rented by the Historical Society. However, the Petitioner is required to recuse from participating when the Historical Society appears or presents evidence or arguments before the Planning Commission. Notice of recusal shall be filed 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(3) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2013-19 A.O. 2016-13 A.O. 2009-10 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 A.O. 2000-74 Keywords: Business Associate Recusal Property Interest