Advisory Opinion No. 2001-68

Re: Smithfield Zoning Board of Review

QUESTION PRESENTED

The Smithfield Town Solicitor requests an advisory opinion on behalf of the Smithfield Zoning Board of Review, municipal appointed positions, as to whether, pursuant to the Rule of Necessity, one or more Board members may participate in the Board’s consideration of an application filed by the Dow Chemical Company, despite their stated conflicts of interests.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Smithfield Zoning Board of Review, municipal appointed positions, need not apply the Rule of Necessity to obtain a quorum to consider an application filed by the Dow Chemical Company given that the grounds for recusal tendered by one member and one alternate do not constitute actual conflicts of interest under the Code of Ethics.

The Smithfield Town Solicitor informs that the Smithfield Zoning Board of Review is scheduled to hear a zoning application filed by the Dow Chemical Company on November 14, 2001. The immediate abutter and principal objector to the application is FMR Rhode Island, Inc. (Fidelity). The Board is comprised of five full-time members and two alternate members, and five active members are required to conduct a hearing. Further, the concurring vote of four of the five members of the Board sitting at the hearing is required to decide in favor of an applicant or any matter within the Board’s discretion.

The Solicitor advises that one member of the Board and its two alternates have filed notices of recusal in accordance with R.I. Gen. Laws § 36-14-6, thus rendering the Board without a quorum for purposes of considering Dow’s application. In light of the recusals, he represents that the Board is unable to conduct its statutorily assigned duties and wishes to invoke the Rule of Necessity to allow the participation of one or more members to achieve a quorum. The recusal notice filed by Board member Deborah L. Masse discloses that the abutter/objector, Fidelity, is a client of her private employer. Alternate member David M. Tassoni filed notice and recusal based upon his spouse’s employment with Fidelity. Finally, alternate member S. James Busam’s Section 6 statement discloses that his engineering and construction company may bid on the Dow project at issue. However, his statement notes that, despite his interest, he believes he is able to participate fairly, objectively and in the public interest.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). A public official will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his or her official activity, to himself/herself, a family member, a business associate, an employer, or any business which he or she represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that he or she shall not accept other employment that will either impair his or her independence of judgment as to his or her official duties or induce him or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. R.I. Gen. Laws § 36-14-5(b).

Further, pursuant to R.I. Gen. Laws § 36-14-5(d), a public official also is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate, or any business in which the official is employed or which the official represents. The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3).

This Commission has recognized a “Rule of Necessity” exception in a narrow range of situations where recusals would inhibit governmental processes, such as where the majority of a public body’s members must recuse themselves and the resulting failure of the quorum renders the entity unable to act. See, e.g., A.O. 92-1 and A.O. 98-43. In past advisory opinions, the Commission has found circumstances warranting its application where the matter at issue affected the municipality as a whole and no official action could otherwise be taken. See A.O. 97-55 (where denial would prevent the Westerly Town Council from approving the Town budget); and A.O. 93-31 (where exception needed for the Town of Richmond to accept new streets into its public roads system). The Commission also granted an exception where the inability of the Workers Compensation Court’s Medical Advisory Board to select a preferred provider network would affect health care options for all injured workers. A.O. 96-65.

Here, the Commission reaches its conclusion without applying the Rule of Necessity. If the Zoning Board of Review were not able to achieve a quorum to consider Dow’s application due to recusals required by the Code of Ethics, the Rule of Necessity, as previously applied by the Commission, would allow the participation of one or more Board members, notwithstanding their conflicts of interest, so as to achieve a quorum. However, application of the Rule is not required in this instance given that the grounds for recusal proffered by two of the individuals at issue do not constitute actual conflicts of interest under the Code of Ethics, R.I. Gen. Laws § 36-14-1, et seq..

Firstly, the Code of Ethics does not prohibit Ms. Masse’s participation and/or vote on Dow’s application since she does not have a business association with the applicant. The business association of her private employer, De Wolfe Realty, with Fidelity, an abutter/objector, is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5 (b) and 5(d). Further, there is no evidence that the Zoning Board’s consideration of Dow’s application would impact her personally.

Additionally, the Code generally does not preclude a public official from participating in matters affecting a spouse’s employer unless there it is reasonably foreseeable that the matter under consideration would affect the family member. See R.I. Gen. Laws § 36-14-7(a); see also A.O. 2000-39 (finding that a Burrillville Town Councilor may participate in discussions and vote on the Council’s consideration of a conflict between landowners and the owner of Pascoag Lake, despite the fact that her spouse is employed by the Episcopal Diocese of Rhode Island, which owns property abutting the Lake); A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of the Bess Eaton Donut and Flour Company’s application for a special use permit to construct a drive-thru in two new locations since his relationship with the applicant is too remote to implicate the Code’s prohibitions and there is no evidence that the construction of the drive-thrus would impact his spouse’s employment in the applicant’s bakery department); and A.O. 98-45 (advising the Administrator of the Rhode Island Division of Public Utilities and Carriers that he could participate in matters that relate to the telecommunications industry or Bell Atlantic despite the fact this his spouse was employed by Bell Atlantic since there was no evidence that the matter would impact his wife’s employment interest).

Here, it is not reasonably foreseeable that the Zoning Board’s consideration of Dow’s application would affect Mr. Tassoni’s spouse’s employment by Fidelity, the abutter/objector. The relevant provisions of the Code, namely sections 5(a) 5(d) and Commission Regulation 5002, do not require recusal for matters involving a spouse’s employer. Accordingly, his relationship with both Dow and Fidelity is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(b) and 5(d).

As to the second alternate member, the Commission observes Mr. Busam’s disclosure that he believes he is able to participate fairly, objectively and in the public interest, despite the fact that his engineering and construction company may bid on the project at issue. Notwithstanding that disclosure, the Commission concludes that Mr. Busam must recuse from participation and/or vote regarding the Board’s consideration of Dow’s application since his company may bid on the project at issue. See A.O. 99-130 (ruling that an Exeter Planning Board member may not participate in matters concerning a Job Corps facility to be located at the Ladd Center, a development project in the Town of Exeter, given that his engineering firm is preparing the master plan for the Ladd Center under a contract with the Rhode Island Economic Development Corporation); A.O. 97-15 (opining that a Wawaloam Elementary School Building Committee member may not participate in any matters relating to bid development or in the awarding of a contract if his employer bids on the project). Based upon his Section 6 statement, it is reasonably foreseeable that his company may bid on the project, thus implicating the prohibitions contained in the Code.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2001-25

2000-95

2000-92

2000-74

2000-39

2000-9

99-130

99-82

99-28

98-127

98-43

97-55

97-37

97-15

96-65

95-49

93-31

92-1

Keywords:

Recusal

Rule of necessity