Advisory Opinion No. 2020-40 Rhode Island Ethics Commission Advisory Opinion No. 2020-40 Approved: September 22, 2020 Re: William J. Piva, Jr. QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that a piece of commercial property for which his employer has the real estate sale listing, and that is presently under contract, is located within such an area. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, is prohibited from participating in the Town Council’s discussions and voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that a piece of commercial property for which his employer has the real estate sale listing, and that is presently under contract, is located within such an area. The Petitioner was elected to a two-year term on the Jamestown Town Council (“Town Council”) in November of 2018. He states that the Town Council is soon expected to consider an amendment to the Jamestown Code of Ordinances proposed by the Jamestown Planning Commission that would continue to restrict the height of both newly constructed structures and renovations to existing structures in Jamestown to 35 feet, but that would allow up to an additional 5 feet for properties located in a designated Special Flood Hazard Area (“SFHA”). He explains that, while the building height limitation in Jamestown is currently 35 feet for all structures and has been for years, provisions of state law permit builders to exceed the height limit, by more than five feet, on properties in certain flood zone areas where living space can be built no lower than the parcel’s base flood elevation. He provides by way of example that, if the base flood elevation of a particular property is 15 feet, and the municipality’s height limit is 35 feet, then the total height of the building could become 35 feet plus 15 feet, for a total of 50 feet. The Petitioner offers that proponents of the proposed amendment take the position that a strict height limit of 35 feet, and no more than 40 feet for properties located in a SFHA, comports with the character of buildings on the island, while opponents of the proposed amendment argue that its passage would result in different, unfair treatment of those who own property in a designated SPFA.[1] The Petitioner states that, in his private capacity, he has been employed for the last five years as a sales associate in the Jamestown office of Lila Delman Real Estate (“Lila Delman”). He describes among his duties the showing and selling of real estate, adding that he represents both buyers and sellers of residential and commercial property. The Petitioner represents that another Lila Delman employee (“agent”) in his office presently has a buyer under contract for a piece of commercial real estate in Jamestown (“property”) which is located in a designated SPFA and, therefore, subject to the provisions of the proposed amendment. He adds that renovations are planned for the property, which heightens the potential for impact by the passing of the proposed ordinance. He states that both the agent, who also represents the seller, and Lila Delman will profit from the sale of the property, and explains that the terms of the pending contract, including the price, remain negotiable until the closing occurs. It is in the context of the facts as represented that the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits his participation in Town Council discussions and voting relative to the proposed amendment. A person subject to the Code of Ethics 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 the 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). 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 is not necessarily certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Further, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, any person within his family, his employer, his business associate, or any business that he represents. Section 36-14-5(d). These provisions of the Code of Ethics prohibit the Petitioner from participating in discussions and voting in Town Council matters that will financially impact his employer, Lila Delman. See A.O. 2019-28 (opining that a member of the Providence City Council, who in her private capacity was an attorney, was prohibited from participating in City Council matters that financially impacted the law firm by which she was employed); A.O. 2018-60 (opining that a member of the Burrillville Town Council was prohibited from participating in matters that involved or impacted the non-profit community health center by which she was employed). Accordingly, based upon the Petitioner’s representations, the application of the relevant provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that, due to the reasonable foreseeability of financial impact upon his employer as a result of his official activity, the Petitioner is prohibited from participating in the Town Council’s discussions and voting relative to the proposed amendment to the Jamestown Code of Ordinances. The Petitioner is advised to recuse consistent with the provisions 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) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) Related Advisory Opinions: A.O. 2019-28 A.O. 2018-60 Keywords: Conflict of Interest Recusal [1] The Petitioner states that, under the proposed amendment, those areas designated as SFHA are subject to change in accordance with periodic updates by the Coastal Resources Management Council every ten years, or as otherwise necessary.