Advisory Opinion No. 2021-45

Rhode Island Ethics Commission

Advisory Opinion No. 2021-45

Approved: June 8, 2021

Re: Adam Schatz

QUESTION PRESENTED:

The Petitioner, who has applied to fill a current vacancy on the Burrillville Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics will place upon him in carrying out his Zoning Board duties if appointed, given that his father-in-law currently serves as the Town’s Building Official.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, if appointed to fill a current vacancy on the Burrillville Zoning Board of Review, a municipal appointed position, will be prohibited by the Code of Ethics from participating in discussion and voting relative to any Zoning Board matter in which his father-in-law will be financially impacted, is a party or participant, will receive an employment advantage, or appears or presents evidence or arguments.  Specifically, the Petitioner will be required to recuse from participation in appeals to the Zoning Board by parties aggrieved by a decision of the Building Official and from appeals to the Zoning Board by parties seeking a determination of compliance with the zoning chapter of the Town’s Code of Ordinances.  However, the Petitioner will not be required to recuse when his father-in-law is before the Zoning Board in his official capacity as the Town Building Official to participate in non-adversarial information sharing or coordination of activities between the Building Official and the Zoning Board, and provided that all of the other requirements of Regulation 1.2.1(B)(1) are satisfied.  

The Petitioner has applied to fill a current vacancy on the Town of Burrillville Zoning Board of Review (“Zoning Board”).  The Petitioner, who is privately employed by a medical software company, has not previously served in an elected or appointed public position.  The responsibility for appointing members to the Zoning Board lies with the Burrillville Town Council (“Town Council”).  The Petitioner states that he was approached by a member of the Screening Committee for the vacant position who, after speaking with the Town’s Solicitor, recommended that the Petitioner seek an advisory opinion from the Ethics Commission concerning his application, given that the Petitioner’s father-in-law is currently employed by the Town of Burrillville (“Town”) as its Building Official.  The Petitioner states that his father-in-law has served in that capacity for more than twenty years.

The Petitioner cites among the responsibilities of the Zoning Board the following: hearing and deciding zoning appeals; authorizing variances and special use permits; and referring matters to the Planning Board or to other municipal boards and agencies, as appropriate, for findings and recommendations.  The Petitioner cites among the duties of the Building Official the following: keeping public records of Town construction; promoting standards for existing dwellings; enforcing adequate and uniform building regulations; and issuing building, plumbing, mechanical, and electrical permits.  The Petitioner states that, with specific regard to zoning, the Building Official serves to promote the public health, safety and general welfare of Town citizens; provide for orderly growth and development in the Town; provide procedures for the administration of the Town’s Code of Ordinances; and provide procedures for the administration of the Zoning Board.

The Petitioner states that the Building Official, in his capacity as the Town’s zoning enforcement officer, may not issue a certificate for any use not specifically permitted in the Town’s Code of Ordinances, except when the Zoning Board issues a written statement granting a resident’s appeal or request for a special use permit or variance.[1]  The Petitioner further states that an appeal to the Zoning Board from a decision of any other zoning enforcement agency or officer may be taken by an aggrieved party, and that the zoning enforcement agency or officer from whom the appeal is taken shall then forthwith transmit to the Zoning Board all of the papers constituting the record upon which the action appealed from was taken.  The Petitioner adds that, per the Building Official, such appeals do not occur with any frequency, as it is much more common for an individual to simply submit a request for a variance or a special use permit.

The Petitioner represents that the Building Official, in his capacity as the Town’s zoning enforcement officer, is tasked with responding in writing within  (15) days to a party who has submitted a written request seeking guidance or clarification regarding the determination of compliance with the zoning chapter of the Town’s Code of Ordinances.  The Petitioner explains that, in the event that no written response is provided by the Building Official within (15) days, the requesting party shall have the right to appeal to the Zoning Board for the determination.  The Petitioner informs that, in response to his inquiry of the Building Official, he was told that the Building Official strives to provide guidance within the parameters of the outlined time frame and, in the Building Official’s experience, appeals of this nature are not submitted with any frequency. 

The Petitioner represents that the Building Official is hired by, and reports directly to, the Town Manager, over whom the Zoning Board has neither appointing nor supervisory authority.  He further represents that the Building Official attends Zoning Board meetings for the purpose of answering questions posed by Zoning Board members based upon his professional knowledge and experience in matters concerning the Town Zoning Ordinance.  The Petitioner states that, in the event that he is appointed to serve as a member of the Zoning Board, he will not be tasked in that capacity with the supervision, evaluation, appointment, classification, promotion, transfer, or discipline of the Building Official.  He further states that he will not be involved with any budgeting or employee contract matters that affect the Building Official, adding that the responsibility for those matters lies with the Town Council.  It is in the context of these representations that the Petitioner seeks guidance from the Ethics Commission concerning what restrictions, if any, the Code of Ethics will place upon him in carrying out his public duties if he is selected to fill the vacancy on the Zoning Board.

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 public official will have an interest that is in substantial conflict with the proper discharge of his public duties if it is reasonably foreseeable that a direct monetary gain or loss will accrue, by reason of his official activity, to himself, his family member, his business associate, or any business by which he is employed or which he represents.  Section 36-14-7(a).  Further, section 36-14-5(d) prohibits a public official from using his position, or confidential information received through his position, to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, or any business by which he is employed or which he represents.

In addition to the above-cited provisions, the Code of Ethics contains specific regulations aimed at curbing nepotism.  Under the general nepotism provisions of Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his 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.  Regulation 1.3.1(B)(1).  See, e.g., A.O. 2013-8 (opining that a Bristol Town Council member was prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother was then serving as the interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position).  The definition of “any person within his [] family” specifically includes father-in-law.  Regulation 1.3.1(A)(2).  Notably, Regulation 1.3.1(B)(1) not only prohibits actions by a public official that would financially impact his family member, but also applies when such actions involve a family member as a party or participant, regardless of the potential for financial impact. Further, under Regulation 1.3.1(B)(1), a public official is prohibited from participating in matters that may bestow an employment advantage upon a family member.  Such an advantage, which might not appear to be a direct financial gain, could be some type of opportunity (such as an educational or travel experience) or resource (such as access to enhanced technology) that the family member would not otherwise have had.

Buttressing the nepotism prohibitions within the Code of Ethics, Commission Regulation 520-RICR-00-00-1.2.1(A)(1) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”) states that a public official must also recuse from participation in his official capacity when any person within his family appears or presents evidence or arguments before his municipal agency.  The exception found at Regulation 1.2.1(B)(1) states that a public official is not required to recuse pursuant to this or any other provision of the Code when his family member is before his municipal agency solely in an official capacity as a duly authorized member or employee of another municipal agency, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that the family member is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion.  See, e.g., A.O. 2018-59 (opining that a member of the Westerly Town Council was not prohibited from participating in the Town Council’s discussions and decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, notwithstanding that his wife was then serving on both committees, provided that neither the petitioner nor his wife had a personal financial interest in any matter under discussion and that all other requirements of what is now Regulation 1.2.1(B)(1) were satisfied).

In conclusion, it is the opinion of the Ethics Commission that, if selected to fill the vacancy on the Zoning Board, the Petitioner will be prohibited by the Code of Ethics from participating in discussion and voting relative to any Zoning Board matter in which his father-in-law will be financially impacted, is a party or participant, will obtain an employment advantage, or appears or presents evidence or arguments.  Specifically, the Petitioner will be required to recuse from participation in appeals to the Zoning Board by parties aggrieved by a decision of the Building Official and from appeals to the Zoning Board by parties seeking a determination of compliance with the zoning chapter of the Town’s Code of Ordinances.  However, the Petitioner will not be required to recuse when his father-in-law is before the Zoning Board in his official capacity as the Building Official to participate in non-adversarial information sharing or coordination of activities between the Building Official and the Zoning Board, and, provided that all of the other requirements of Regulation 1.2.1(B)(1) are satisfied.  All recusals shall be made consistent with the provisions set forth in section 36-14-6.  

This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above.  The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise.

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-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002)         
520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004)       
 

Related Advisory Opinions:  
A.O. 2018-59 
A.O. 2013-8   

Keywords:
Nepotism                    

[1] The Petitioner states that the Building Official may also issue a certificate when the Town Council issues a written statement specifying an amendment to the Town’s Code of Ordinances.