Advisory Opinion No. 2020-38 Rhode Island Ethics Commission Advisory Opinion No. 2020-38 Approved: September 22, 2020 Re: Christopher Willi QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Town Council, a municipal elected position, requests an advisory opinion regarding (i) whether, upon recusal, he may attend and speak at public hearings before the Town Council regarding liquor licenses and/or outdoor entertainment licenses in his capacity as a business owner who holds such licenses; and (ii) whether he is prohibited by the Code of Ethics from participating in Town Council discussions and voting relative to moped licenses and operations, given that the owner of the company from which he leases his business property holds and operates two of the five moped licenses approved by the Town Council and issued by the Town. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner (i) may, upon recusal in his public capacity as a member of the New Shoreham Town Council, attend and speak at public hearings before the Town Council regarding liquor licenses and/or outdoor entertainment licenses in his capacity as a business owner who holds such licenses, under the public forum exception as provided in Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003); and (ii) is prohibited by the Code of Ethics from participating in Town Council discussions and voting relative to moped licenses and operations, given that the owner of the company from which he leases his business property holds and operates two of the five moped licenses approved by the Town Council and issued by the Town. However, the Petitioner may participate in Town Council discussions and voting relative to traffic safety in general in New Shoreham but is cautioned against taking any official action which relates specifically to moped licenses and operations. The Petitioner serves as a member of the New Shoreham Town Council (“Town Council”). He identifies among the responsibilities of the Town Council the establishment of policy, approval, and regulation regarding certain licenses within the Town of New Shoreham (“Town” or “New Shoreham”). The Petitioner states that the licenses pertinent to his request for the instant advisory opinion are those for liquor, outdoor entertainment, and mopeds. In his private capacity, the Petitioner is the majority shareholder of On-Island Entertainment Management, Inc., d/b/a Captain Nick’s (“Captain Nick’s”). The Petitioner further states that Captain Nick’s holds a Town BV liquor license, a victualing license, and an outdoor entertainment license (collectively, “licenses”). He adds that there are approximately 40 liquor licenses and 25 outdoor entertainment licenses which were approved by the Town Council and issued by the Town. The Petitioner represents that, amid concerns associated with the potential spread of COVID-19, the Town Council recently voted to temporarily revoke all outdoor entertainment licenses, and that the matter is expected to be considered again by the Town Council in the near future. The Petitioner further represents that he recused from participation in discussions and voting when the Town Council revoked the outdoor entertainment licenses, and that he will continue to recuse when the Town Council considers not only outdoor entertainment license, but also BV liquor licenses and/or victualing licenses going forward. The Petitioner states that he would, however, like permission to address the Town Council regarding the aforementioned licenses in his private capacity as a business owner once he has recused from participation in his public capacity. The Petitioner represents that the property from which he operates Captain Nick’s is leased from Offshore Trading Co., Inc. (“Offshore Trading”), the owner of which holds and operates two of the five moped licenses approved by the Town Council and issued by the Town. The Petitioner states that, given the recent increase and severity of moped accidents in New Shoreham, the Town Council is soon expected to engage in discussions and voting relative to moped licenses and operations. The Petitioner acknowledges that the owners of the five moped licenses in New Shoreham would likely be impacted in different ways and to different extents by the passage of any new or amended regulations which have yet to even be identified. He explains that he is prepared to recuse from participation in discussions and voting relative to moped licenses and operations, given the fact that the owner of the entity from which he leases his business property also holds and operates two moped licenses. He states that he would, however, like to participate in discussions and voting related to the enforcement, strategy, and planning of traffic safety in general in the Town, provided that he could do so in conformance with the Code of Ethics. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which 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 occurs if a public official has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). However, section 36-14-7(b) of the Code of Ethics, referred to as the “class exception,” states that a public official will not have conflict of interest requiring recusal if any benefit or detriment accrues to his business associate “as a member of a business, profession occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater or lesser extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” A public official is prohibited from using his public position to obtain financial gain, other than that provided by law, for himself, a person within his family, his employer, his business associate, or any business that he represents. Section 36-14-5(d). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). Liquor Licenses and/or Outdoor Entertainment Licenses The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of any person publicly expressing his [] own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his [] spouse or dependent child.” Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). Here, the Petitioner seeks guidance regarding whether he may speak at public hearings before the Town Council addressing licenses of the type that he holds in his private capacity as a business owner. Two years ago, the Petitioner, then also a member of the Town Council, sought and received guidance from the Ethics Commission under similar circumstances. In Advisory Opinion 2018-43, the Ethics Commission opined that the Petitioner could, upon recusal from Town Council discussions and voting, address the Town Council and/or other Town boards regarding a development on a property that directly abutted his residence, provided that the Petitioner did not receive access or priority not available to any other member of the public. The Petitioner was further cautioned that he could not use his position in any way to influence members of the Town Council and/or members of other Town boards and that he must recuse from participation and voting on the matter consistent with section 36-14-6. See also A.O 2017-11 (opining that the Chairperson of the North Providence Historic District Commission (“HDC”) could address the HDC during its application review concerning a property abutting her residence, provided that the petitioner did not receive access or priority not available to any other member of the public); A.O. 2003-15 (opining that a member of the Scituate Town Council could, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he was an abutter, provided that he did not receive special access or priority not available to any other member of the public). It is likewise the opinion of the Ethics Commission here that the Petitioner may appear before the Town Council to speak during public hearings regarding the liquor licenses and/or outdoor entertainment licenses held by him in his private capacity as a business owner, provided that he does not receive access or priority not available to any other member of the public. The Petitioner is also likewise cautioned that he may not use his public position in any way to influence members of the Town Council regarding this matter. Finally, as he properly anticipated, the Petitioner must recuse from any discussions and/or voting regarding the liquor licenses and/or outdoor entertainment licenses in his capacity as a Town Council member. Notice of recusal must be filed consistent with section 36-14-6. Moped Licenses and Operations The Ethics Commission will now address the Petitioner’s inquiry regarding whether he is prohibited by the Code of Ethics from participating in Town Council discussions and voting relative to moped licenses and operations, given that the owner of the company from which he leases his business property also holds and operates two of the five moped licenses issued by the Town and approved by the Town Council. The Ethics Commission has consistently determined that landlord-tenant relationships constitute “business associate” relationships as that term is defined in the Code of Ethics. See, e.g., A.O. 2006-9 (opining that a member of the New Shoreham Town Council could not participate in the Town Council’s review of Class A alcoholic beverage licenses, given that his landlord was the holder of one of two licenses in the Town); A.O. 2002-70 (opining that a member of the North Kingstown Town Council was a business associate of the person from whom she rented retail space and, as such, could not participate in Town Council matters that would financially impact her landlord). Here, the Petitioner properly acknowledges not only the business association between himself and Offshore Trading in the roles of tenant and landlord, respectively, but also the requirement that he recuse from participation in discussions and voting relative to moped licenses, given that the owner of Offshore Trading owns and operates two of the five moped licenses in the Town and would likely be financially impacted by any decisions made by the Town Council regarding moped licenses. The Petitioner’s representation that the owners of the five moped licenses in the Town would likely be impacted in different ways and to different extents by any new or reviewed regulations, which have yet to even be identified, obviates the need for a class exception analysis under section 36-14-7(b) of the Code of Ethics. The Petitioner explains that he is prepared to recuse from participation in discussions and voting concerning moped licenses and regulations but that he would, however, like to participate in discussions and voting related to the enforcement, strategy, and planning of traffic safety in general in New Shoreham, provided that he could do so in conformance with the provisions of the Code of Ethics. 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 permitted to participate in discussions and voting relative to the enforcement, strategy, and planning of traffic safety in general in New Shoreham. The Ethics Commission is aware, however, that a general discussion can quickly devolve into a more focused review of specific items. Therefore, the Petitioner must be vigilant about identifying such instances where a general conversation about traffic safety in general begins to focus on mopeds or other specific issues that are likely to financially impact his landlord. In such circumstances, the Petitioner must recuse from further participation consistent 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) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-15-7(a) § 36-14-7(b) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Related Advisory Opinions: 2018-43 2017-11 2006-9 2003-15 2002-70 Keywords: Business Association Public Forum Exception Recusal