Advisory Opinion No. 2000-3

Re: Michael E. Znosko

A. QUESTION PRESENTED

The petitioner, the Chairperson of the Ancient Littleneck Cemetery in East Providence, a municipal appointed position, requests an advisory opinion as to whether he may purchase an unused plot of Cemetery land for use as a burial site for himself and his family.

A. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chairperson of the Ancient Littleneck Cemetery in East Providence, a municipal appointed position, may not purchase an unused plot of Cemetery land for use as a burial site for himself and his family. R.I. Gen. Laws §§ 36-14-5(e)(1),(4) prohibit him from appearing before his own board for the purpose of purchasing the plot for a period of one year following the official severance of his position on the Cemetery Commission.

B. DISCUSSION

1. Facts

The petitioner is the Chairperson of the Ancient Littleneck Cemetery Commission, a five-member commission appointed by the East Providence City Council. The Ancient Littleneck Cemetery dates back to 1655 and is included in the National Register of Historic Places. Among those buried there include a Pilgrim, the first mayor of New York City, notable colonial era militiamen and early settlers. The petitioner advises that the Cemetery Commission oversees the upkeep and historic preservation of the grounds, including record maintenance and the procurement of goods and services through the City. Since the Cemetery does not provide “perpetual care”, the City performs minimal grounds keeping on a quarterly basis. Upon presentation of a valid burial certificate, an individual may be buried in the Cemetery. However, he represents that the Cemetery has been closed for countless years with burial activity limited to those descendants of plot owners who present valid certificates.

The petitioner indicates that he has discovered an unused plot of Cemetery land which, until recently, had been used as a dumping ground by an adjoining private cemetery. Five identified individuals were legitimately buried in the plot a number of years ago, although his search of Cemetery records reveals no record of deed or burial certificates for them. He wishes to purchase the plot for use as a burial site for himself and his family.

As the Commission Chairperson, the petitioner has the responsibility for issuing certificates of burial. He represents that no criteria presently exist for burial in the Cemetery, other than the possession of a valid burial certificate. The Cemetery does not provide grave opening or related services, so any interested parties must make their own arrangements to open gravesites by hand, place any headstones/markers, and loam or seed the area. He states that there is no monetary value assigned to the plots, as the Cemetery has not engaged in the sale of plots for years. If any plot purchases were to be contemplated, he believes that the Cemetery Commission would have to determine the present value of the sites. He also believes that any plot values assigned would be lower than a private cemetery, given that no care and/or services are provided.

2. Analysis

Under the Code of Ethics, the petitioner 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to himself, a family member, a business associate, an employer, or any business which the official represents. See R.I. Gen. Laws § 36-14-7(a). The Code further prohibits him from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Finally, the Code provides that while serving and for a period of one year after a person has officially terminated his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). The legislative intent of this revolving door provision presumably is to minimize any influence the former public official may have with respect to his former agency/employer. The only exceptions to Section 5(e)’s strict prohibitions are those allowed by this Commission in cases of hardship.

The statutory prohibitions contained within Section 5(e) are stricter than virtually any other provisions in the Code of Ethics. In most instances under the Code, public officials and employees may address potential conflicts of interest by recusing from participation in related discussions and votes. However, absent an express finding by this Commission that a hardship exists, the prohibitions in that section are absolute. In other words, recusal is not an option unless the Commission determines that it is justified by a hardship. In cases of hardship, the Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardships exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were a) the official’s or employee’s principal residence, or b) the official’s or employee’s place of business.

This petitioner’s request falls squarely within the parameters of Section 5(e)(1). Here, he advises that there is no present value assigned to the plot at issue, since the only burial activity in recent years involved plots for which burial certificates previously had been issued. In order for the petitioner to purchase the plot, he would have to appear before his own board to 1) inquire whether the plot is available for purchase; and 2) inquire as to the present value of the plot. Pursuant to Section 5(e)(4) of the Code, the petitioner may not appear before his own board within one year of the official severance of his position with the Cemetery Commission. Further, the circumstances presented by the petitioner here do not justify a finding of hardship. Unlike previous situations in which the Commission has found hardships to exist, the interests at issue do not involve his principal residence or place of business.

In a recent advisory opinion, this Commission concluded that Section 5(e) of the Code prohibited a Rhode Island Bridge and Turnpike Authority Board member from appearing before the Authority for the purposes of applying and/or interviewing for the position of its Executive Director. A.O. 99-60. Similarly, this petitioner may not appear before his own Cemetery Commission as provided by R.I. Gen. Laws §§ 36-14-5(e)(1),(4).

Finally, when enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Here, the Cemetery Commission Chairperson’s prospective purchase of a recently discovered, unused burial plot creates, at the very least, an appearance of impropriety. That appearance of impropriety is underscored by the petitioner’s own representation that the Cemetery Commission has not provided the public with notice of the discovery and/or availability of burial plots.

Code Citations:

36-14-5(d)
36-14-5(e)
36-14-7(a)

Related Advisory Opinions:

99-126
99-125
99-108
99-94
99-76
99-60
99-49
98-96
98-13
97-146
97-73
97-18
96-102
96-85
96-84
94-13

Keywords:

Revolving door