Advisory Opinion No. 2002-7

Re: Mr. Don Morash

QUESTION PRESENTED

The petitioner, a Warwick Zoning Board member, a municipal appointed position, requests an advisory opinion as to whether he may testify as an expert witness before the Warwick City Council in his private capacity as a real estate broker/appraiser.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Warwick Zoning Board member, a municipal appointed position, may testify as an expert witness before the Warwick City Council in his private capacity as a real estate broker/appraiser.

The petitioner is a member of the Warwick Zoning Board. He represents that, in his private capacity as a real estate broker and appraiser, a private client has asked him to testify before the Warwick City Council as an expert witness in a zoning matter. He advises that the Zoning Board has not reviewed the property at issue and there is no indication that the matter will come before the Zoning Board. Nevertheless, in the unlikely event that this matter does come before the Zoning Board, he represents that he will recuse from participation and voting.

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. See R.I. Gen. Laws § 36-14-5(e)(1), (2). R.I. Gen. Laws § 36-14-5(e)(3) provides that he may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him, a family member, business associate or any business by which he is employed or represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has 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. Finally, R.I. Gen. Laws §§ 36-14-5(b), (c) and (d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain.

The Commission concludes that the Code of Ethics does not prohibit the petitioner from testifying before the Warwick City Council in his private capacity as a real estate broker/appraiser. Pursuant to R.I. Gen. Laws § 36-14-5(e)(4), he may not have any personal involvement with a matter before the Zoning Board that goes beyond ministerial activities for a period of one-year following his expiration of office. Section 5(e)’s revolving door restrictions, however, do not extend to his having substantive involvement in matters before other municipal departments or entities within the City of Warwick, such as the City Council. While the petitioner is an appointed member of the Zoning Board, his public office does not carry-over, with the accompanying restrictions, to other public bodies within the City of Warwick, including the City Council. See A.O. 2001-47 (concluding, inter alia, that although the Hopkinton Building & Zoning Official advises the Zoning Review Board on certain matters in his official capacity, his employment within that Office does not carry-over, with the accompanying restrictions, to other public bodies within the Town); A.O. 96-84 (opining that a former Jamestown Planning Board member may appear as a witness before the Zoning Board less than one year after his resignation, but may not appear before the Planning Board or at any joint meeting of the Planning and Zoning Boards).

In the event that the matter in which the petitioner seeks to testify as an expert witness comes before the Zoning Board, however, the petitioner must recuse himself from participation and/or vote on the matter. Notice and recusal should be filed with both the Warwick Zoning Board and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. In any instance, the petitioner may not use any confidential information obtained while serving on the Zoning Board for financial gain. See R.I. Gen. Laws §§ 36-14-5(a), (c), (d).

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-5(e)
36-14-7(a)
36-14-6

Related Advisory Opinions:

2001-54
2001-47
2001-42
2001-26
2000-66
2000-60
99-140
99-126
99-108
99-61
99-53
98-92
97-25
97-3
96-84
95-6

Keywords:

Financial interest
Private employment
Revolving door