Advisory Opinion No. 2019-8 Rhode Island Ethics Commission Advisory Opinion No. 2019-8 Approved: February 5, 2019 Re: Francis DiGregorio QUESTION PRESENTED: The Petitioner, a member of the Exeter Town Council, a municipal elected position, seeks an advisory opinion as to whether the Code of Ethics prohibits his participation in discussions and decision-making regarding an ordinance involving the zoning and regulation of utility-scale solar power stations, given that the Petitioner is a party to pending litigation in which a developer of utility-scale solar power stations has intervened. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Exeter Town Council, a municipal elected position from participation in discussions and decision-making regarding an ordinance involving the zoning and regulation of utility-scale solar power stations, notwithstanding that the Petitioner is a party to pending litigation in which a developer of utility-scale solar power stations has intervened, provided neither the Petitioner, nor 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. The Petitioner was elected to the Exeter Town Council (“Town Council”) in November of 2018. Prior to his election to the Town Council, the Petitioner had served as a member of the Exeter Planning Board (“Planning Board”) for the last twenty years. The Petitioner states that on February 4, 2019, the Town Council is scheduled to consider amendments to sections of the Exeter Code of Ordinances proposed by the Planning Board. The Petitioner explains that, specifically, the Town Council will engage in review of Ordinance No. 9,[1] which was designed to establish and regulate the location of utility-scale solar power stations (“solar facilities”) in the Town of Exeter (“Town”). The Petitioner states that, if approved, one of the solar ordinances that Ordinance No. 9 would replace is one that had been proposed by Green Development, which is the subject of pending litigation in Rhode Island Superior Court initiated by the Petitioner as Appellant and in which Green Development has since intervened. The Petitioner further states that he is the owner of real property which abuts land that Green Development seeks to develop to host a solar facility. The Petitioner represents that the Town Council’s decision as to whether or not to approve Ordinance No. 9 will have no effect on the aforementioned litigation, given that Ordinance No. 9, if approved, will be prospective only, and have no effect on present projects involving Green Development or any other developer operating under a prior ordinance. 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).[2] 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). In Advisory Opinion 2012-10, the Ethics Commission opined that a member of the Charlestown Town Council was not prohibited from participating in the Town Council’s consideration of the Town Administrator’s recent job performance, notwithstanding that the petitioner had a lawsuit pending in Superior Court in which she alleged wrongful termination, naming the Town Administrator as a defendant in both his individual and official capacities. The Ethics Commission determined that the issues related to the Town Administrator’s job performance had no direct financial nexus nor any relation to the facts alleged in the petitioner’s lawsuit and would have no direct impact on the litigation of her lawsuit. The case of the instant Petitioner is analogous in that there is no direct financial nexus between the passage or rejection of Ordinance No. 9 by the Town Council and the Petitioner’s pending litigation. The Petitioner has represented that Ordinance No. 9, if approved, will be prospective only and, as such, will have no effect on present projects involving Green Development or any other developer operating under a prior ordinance, adding that he has no reason to believe or expect that he or 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 as a Town Council member regarding Ordinance No. 9. For these reasons, and consistent with the analysis contained herein, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participation in discussions and decision-making regarding Ordinance No. 9. However, the Petitioner is cautioned that, should circumstances change in that it becomes reasonably foreseeable that his participation in this matter could result in financial impact upon himself, his family, a business associate or an employer, he is encouraged to seek further guidance from this Commission and/or recuse from participation 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Regulation 520-RICR-00-00-1.1.5 Related Advisory Opinion: A.O. 2012-10 Keywords: Conflict of Interest Financial Interest [1] The number 9 refers to the proposed ordinance being the ninth draft. [2] Formerly Commission Regulation 36-14-7001 - Reasonable Foreseeability.