Advisory Opinion No. 2020-2 Rhode Island Ethics Commission Advisory Opinion No. 2020-2 Approved: January 7, 2020 Re: Melissa Pattavina QUESTION PRESENTED: The Petitioner, a member of the Newport Planning Board, a municipal appointed position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in discussions and decision-making relative to matters concerning the proposed demolition of property and subsequent development of a hotel in Newport, given that her mother owns property within 200 feet of the hotel’s proposed location. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Newport Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in discussions and decision-making relative to matters concerning the proposed demolition of property and subsequent development of a hotel in Newport, given that her mother owns property within 200 feet of its proposed location. The Petitioner is a member of the Planning Board (“Planning Board”) in the City of Newport (“City”), having served continuously since her appointment by the City Council in 2012. She cites among the duties of the Planning Board: reviewing applications for demolition permits; responding to requests from the Zoning Board of Review for recommendations regarding special use permit applications; and acting as the agency for Department Plan Review to ensure compliance with the City’s Comprehensive Land Use Plan. The Petitioner states that the Planning Board is currently reviewing an application for the demolition of a series of five properties (collectively, the “subject property”) located on Waite’s Wharf. She anticipates that an application for a special use permit to develop a 150-room hotel on the subject property will soon follow. The Petitioner explains that the demolition permit application requires notification to all property owners within a 200-foot radius of the subject property (“abutters”). She further explains that her mother was one of approximately 100-150 individuals who received abutters’ notices as the owners of a total of approximately 376 properties located within 200 feet of the subject property. The Petitioner describes her mother’s property as comprised of four units, two of which are residential and two of which are retail spaces. She adds that all four units are presently rented and provide income to her mother and acknowledges that the proposed demolition of the subject property and potential construction of a hotel could financially impact her mother as the owner of abutting property. The Petitioner represents that the application for the demolition permit was brought before the Planning Board at a special meeting on November 18, 2019, at which time the Petitioner recused out of an abundance of caution. The matter was continued to January of 2020. Based on these representations, the Petitioner seeks guidance from the Ethics Commission regarding whether she may participate in the Planning Board’s consideration of issues surrounding the proposed demolition and potential subsequent development of the subject property. The Code of Ethics provides that no public official shall participate in any matter as part of her public duties if she has reason to believe or expect that any person within her family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities - Nepotism (36-14-5004) (“Regulation 1.3.1”). The definition of “any person within [a public official’s] family” specifically includes “mother.” Regulation 1.3.1(A)(2). Additionally, a person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which 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 occurs if the Petitioner has reason to believe or expect that she, any person within her family, her business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Finally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, any person within her family, her employer, her business associate, or any business that she represents. Section 36-14-5(d). In advisory opinions 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. 2006-52; A.O. 2006-49; A.O. 2002-16; and A.O. 2001-19. Given this presumption, the Ethics Commission has frequently stated that a public official may not participate in discussions and decision-making on matters concerning such property absent some evidence that the official action would not impact the financial interest of the public official or the public official’s family member. For example, in Advisory Opinion 2016-13, the Ethics Commission opined that a member of the Bristol Planning Board was prohibited by the Code of Ethics from participating in the Planning Board’s consideration of a proposed hotel development, given that his first cousins owned properties within the area requiring notice and would be financially impacted by the Planning Board’s decision. Similarly, in Advisory Opinion 2005-66, the Ethics Commission opined that a member of the Town of Warren Planning Board was prohibited by the Code of Ethics from participating in matters before the Planning Board relating to a housing development that was on property adjacent to property owned by his mother. See also A.O. 2005-7; A.O. 2003-13; and A.O. 2002-30. In the present matter, the Petitioner represents that her mother owns property within the 200-foot radius of the subject property. The presumption of financial impact is not only triggered, but bolstered by the Petitioner’s acknowledgement thatthe proposed demolition of the subject property and potential construction of a hotel could financially impact her mother as the owner of abutting property. Furthermore, we decline to apply section 36-14-7(b) of the Code of Ethics, commonly referred to as the “class exception,” to the instant matter. Our prior analogous advisory opinions have highlighted the difficulty of applying the class exception to real property, given the unique nature of each discrete piece of real estate and the fact that actions affecting real property and its value will likely create a dissimilar impact on each property owner. See, e.g., A.O. 2016-3 (declining to apply the class exception and opining that a Scituate Town Council member, who owned two of the fifty-seven properties located with 300 feet of the Hope Mill, was required to recuse from the Town Council’s consideration of a tax stabilization agreement for the Hope Mill); A.O. 2008-63 (declining to apply the class exception and opining that a Narragansett Town Council member was required to recuse from the Town Council’s consideration of a Zoning Ordinance amendment that would create a village zoning district that impacted approximately seventy properties, including two properties owned by the petitioner, given the small size of the class and the unique nature of each discrete piece of real estate). Accordingly, based on the Petitioner’s representations, the application of the Code of Ethics, and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in discussions and decision-making in matters concerning the proposed demolition of the subject property and subsequent development of the hotel, given that her mother owns property within 200 feet of the hotel’s proposed location and is presumed to be financially impacted by the Planning Board’s decision. Notices 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) § 36-14-7(b) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2016-13 A.O. 2016-3 A.O. 2008-63 A.O. 2006-52 A.O. 2006-49 A.O. 2005-66 A.O. 2005-7 A.O. 2003-13 A.O. 2002-30 A.O. 2002-16 A.O. 2001-19 Keywords: Property Interest Recusal