Advisory Opinion No. 2001-47

Re: Charles M. Mauti

QUESTION PRESENTED

The petitioner, the Hopkinton Building and Zoning Official, a municipal appointed position, requests an advisory opinion as to whether he may seek a variance from the Hopkinton Zoning Review Board to construct a single family residence on a parcel of land that he has negotiated to purchase, given that he advises the Board in his official capacity.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Hopkinton Building and Zoning Official, a municipal appointed position, may seek a variance from the Hopkinton Zoning Review Board relative to his construction of a single family residence, provided that he recuses from advising the Board on all matters relating to his application for a zoning variance. See R.I. Gen. Laws § 36-14-5(a), 7(a).

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his position with the agency. This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by his former agency that is not available to the general public.

Pursuant to Section 6 of the Code of Ethics, the petitioner must recuse himself from advising the Zoning Review Board on matters relating to his zoning variance application, in the event that he purchases the parcel at issue. Recusal is necessary based upon his personal financial interest in the property and the likelihood of his official activity affecting his private financial interests. See R.I. Gen. Laws § 36-14-5(a). Section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before other municipal departments or entities within the Town of Hopkinton, such as the Zoning Review Board. Although the petitioner may advise the Board on certain matters in his capacity as the Building and Zoning Official, his employment within that Office does not carry-over, with the accompanying restrictions, to other public bodies within the Town of Hopkinton. Nonetheless, he must recuse from participation in all matters involving his property and/or request for specific relief. Notice and recusal should be filed with both the Town of Hopkinton and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner may not use any confidential information obtained as the Building and Zoning Official for financial gain. R.I. Gen. Laws §§ 36-14-5(a), (c), (d).

Code Citations:

36-14-5(a)

36-14-5(e)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2001-42

98-18

96-112

96-61

Keywords:

Financial interest

Property interest

Recusal