Advisory Opinion No. 2019-68 Rhode Island Ethics Commission Advisory Opinion No. 2019-68 Approved: November 19, 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 discussions and decision-making relative to the potential amendment of the existing Disturbing the Peace zoning ordinance section, and/or the drafting of a Farm Promotion Accessory Uses zoning ordinance section, given that said discussions and decision-making will incorporate the results of a litigation matter about which the Ethics Commission previously opined that the Petitioner was prohibited from discussing and making decisions about because of the reasonable foreseeability, at that time, that the Petitioner could be financially impacted by the litigation. 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 not prohibited by the Code of Ethics from participating in discussions and decision-making relative to the potential amendment of the existing Disturbing the Peace zoning ordinance section, and/or the drafting of a Farm Promotion Accessory Uses zoning ordinance section, notwithstanding that said discussions and decision-making will incorporate the results of a litigation matter about which the Ethics Commission previously opined that the Petitioner was prohibited from discussing and making decisions about, because the litigation has since been dismissed with prejudice. The Petitioner was elected to the Little Compton Town Council (“Town Council”) on November 6, 2018. He sought and received Advisory Opinion No. 2019-4 last January, the facts of which are pertinent to the instant matter. The Petitioner explained that, since the summer of 2015, there had been a degree of public controversy surrounding whether certain entertainment activities, namely a series of summer musical concerts, weddings, and wedding receptions at Carolyn’s Sakonnet Vineyard (“Vineyard”) in the Town of Little Compton (“Town”), complied with municipal and state law and any conservation restrictions on portions of the Vineyard’s property. The Petitioner represented that he became acquainted with neighbors and/or abutters (“plaintiffs”) to the Vineyard who, in June of 2017, filed a lawsuit (“litigation”) in the Rhode Island Superior Court against the Town Council, the Town Council members in their official capacities, and the owners of the Vineyard (collectively, “defendants”), seeking relief and remedies from the effects of the Vineyard activities on their property and everyday lives. The Petitioner represented that he believed he might have been one of ten potential John Does, then yet unnamed, in a counterclaim filed by the Vineyard against the plaintiffs,[1] in which case the litigation could result in a direct financial impact upon him. It was against this set of facts that the Petitioner sought the guidance of the Ethics Commission regarding whether the Code of Ethics prohibited him from participating in the Town Council’s discussions and decision-making relative to matters concerning the pending litigation. The Ethics Commission opined that, based upon the facts as represented, the Petitioner was prohibited from discussing and making decisions about matters relating to the litigation. Today, the Petitioner presents an update as to the litigation. On May 22, 2018, following mediation by and among the plaintiffs and defendants (“parties”) to the litigation, the parties memorialized the understanding reached between them in the form of a Memorandum of Understanding (“MOU”). Among other things, the MOU provides that, upon a finding by the Newport Superior Court that the events held by the Vineyard constituted lawful, pre-existing, non-conforming uses under the Little Compton Zoning Ordinance, the parties shall dismiss with prejudice the claims filed against one another and against remaining John Does. The Petitioner states that, in light of a provision in the MOU that the mediator will retain jurisdiction over the MOU to resolve any disputes by and among the parties thereto, it is, in the Petitioner’s words, “remotely conceivable” that the claims against the parties, and the John Does, could be resurrected. On May 17, 2019, an Order and Judgment entered in the Newport Superior Court finding that the events held by the Vineyard constituted lawful, pre-existing, non-conforming uses under the Little Compton Zoning Ordinance; approving the MOU; and ordering the dismissal of all claims with prejudice. The Petitioner now seeks guidance from the Ethics Commission regarding whether he is prohibited by the Code of Ethics from participating in Town Council discussions and decision-making regarding the potential amendment of the existing Disturbing the Peace ordinance section, and/or the drafting of a Farm Promotion Accessory Uses ordinance section, the purpose of which would be to clarify the existing definition in the zoning ordinance as to what constitutes agricultural uses, given that both could potentially impact the owners of the Vineyard who were defendants in the litigation which has since been dismissed with prejudice. Under the Code of Ethics, a public official may not have 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 public official has such a substantial conflict of interest if he has reason to believe or expect that he, a family member, employer or business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Also, a public official may not use his public office or confidential information received through his public office to obtain financial gain, other than that provided by law, for himself, a family member, employer or business associate. Section 36-14-5(d). Finally, a public official may not disclose, for pecuniary gain, confidential information acquired in the course of and by reason of his official duties. Section 36-14-5(c). Applying these provisions of the Code of Ethics, the Ethics Commission has previously opined that public officials who have initiated lawsuits against their municipalities must recuse from any decision-making by the municipality relative to the litigation. See, e.g., A.O. 2019-12, 2019-11, and 2019-10 (opining that three members of the Tiverton Town Council were required to recuse from participating in the Town Council’s discussions and voting relative to pending Superior Court litigation that each had individually initiated against the Town of Tiverton); A.O. 2012-8 (opining that a Charlestown Town Council member who was the plaintiff in a wrongful termination lawsuit against the Town was required to recuse from any Town Council matters pertaining to her lawsuit). By way of comparison, and more analogous to the facts as represented in the instant matter, the petitioner in Advisory Opinion 2010-59, before his election to the Tiverton Town Council, had with his spouse become involved in three distinct tax appeal actions challenging the levy of taxes by the Town of Tiverton in 2008 and 2010. Following his election, he and his spouse took actions to withdraw themselves from, or dismiss, all three tax appeals, one of which involved a lawsuit in the Newport Superior Court from which the petitioner’s spouse had removed herself but that remained active as to 18 other plaintiffs. The petitioner sought guidance from the Ethics Commission regarding whether the Code of Ethics prohibited him from participating in the Town Council’s discussions and voting relative to, among other things: (1) issues surrounding the ongoing litigation pending in the Newport Superior Court; and (2) the adoption of a charter amendment, ordinance or policy aimed at curing the allegedly illegal tax levy procedure (collectively, the “matters”). The Ethics Commission opined that, upon the actual withdrawal or dismissal by the petitioner and his spouse as to all three subject tax appeals, the petitioner could participate in the Town Council’s discussions and voting relative to the matters. Here, the facts surrounding the dismissal with prejudice of all claims filed against the parties by one another, and against remaining John Does, parallels the withdrawal or dismissal of the three tax appeals by the petitioner and/or his spouse in Advisory Opinion 2010-59. However, unlike the lawsuit in Advisory Opinion 2010-59 from which the petitioner’s spouse withdrew as a plaintiff but which continued for the remaining 18 plaintiffs, the litigation in the instant matter has ended, having been dismissed with prejudice as to all parties, including the remaining John Does. Accordingly, based on the facts as represented by the Petitioner, the relative provisions of the Code of Ethics and prior advisory opinions, and consistent with the Petitioner’s representation in Advisory Opinion 2019-4 that unless and until the litigation is resolved by a settlement and/or court order he remains a potential counterclaim defendant, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in the Town Council’s discussions and decision-making relative to the potential amendment of the existing Disturbing the Peace ordinance section, and/or the drafting of a Farm Promotion Accessory Uses ordinance section, notwithstanding that both could potentially impact the owners of the Vineyard who were defendants in litigation which has since been dismissed with prejudice. Where the Petitioner has stated that it is remotely conceivable that the claims against the parties, and the John Does, could be resurrected, the Petitioner is advised that, should that occur, he must recuse from participation in discussions and decision-making involving the resurrected claims pursuant to section 36-14-6 or seek further guidance from the Ethics Commission. 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(c) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2019-12 A.O. 2019-11 A.O. 2019-10 A.O. 2019-4 A.O. 2012-8 A.O. 2010-59 Keywords: Litigation Recusal