Advisory Opinion No. 2002-16

Re: Kevin R. Gosper

QUESTION PRESENTED

The petitioner, a Richmond Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Planning Board’s consideration of matters concerning the development and rezoning of property to which he is an abutter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Richmond Planning Board member, a municipal appointed position, may not participate and/or vote on matters involving a proposed multi-use development to which he is an abutting property owner.

The petitioner advises that his property directly abuts a portion of a large, multi-use development which developers wish to rezone from residential to a flex tech zoning district. The total size of the development is 552 acres and the project will be broken down into phases. He represents that Phase 1 of the development, located approximately one-mile from his property, would not require a zone change and would remain residential. He indicates that Phase 1 is anticipated to take ten to fifteen years to build. However, future phases of building closer to the petitioner’s property would require zoning changes, as well as changes to the Town’s Comprehensive Plan.

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. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) further prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, business associate or any person within his family.

In previous advisory opinions, the Commission has concluded that town officials may not participate and vote on matters involving subdivisions to be located adjacent to their property since they would have a direct financial interest in any official activity affecting the subdivision. See, e.g., A.O. 2001-19 (concluding that a Lincoln Planning Board member may not participate and/or vote on matters involving the Whipple-Cullen Farm, given that he owns property abutting the proposed residential development); A.O. 97-63 (finding that an Exeter Planning Board Member may not participate in matters involving a proposed combined preliminary and final plan for the development of a subdivision given that he resides within 1,000' of the development). See also A.O. 92-24; A.O. 90-85. The Commission consistently has found substantial conflicts requiring recusal to exist where the official is an abutter to the applicant, normally defined as residing within 200' of the property at issue. See, e.g., A.O. 95-27; A.O. 90-85; A.O. 90-34.

Here, absent some evidence that action by the Planning Board regarding the proposed multi-use development would not affect the financial interests of the petitioner as an abutting property owner, the petitioner may not participate and/or vote in the Planning Board’s consideration of the proposed development. Notice of recusal should be filed both with the Ethics Commission and the Town of Richmond in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
35-14-7(a)

Related Advisory Opinions:

2001-19
2001-4
2000-90
99-148
99-99
98-56
97-63
95-27
92-24
91-75
90-85
90-34

Keywords:

Property interest
Recusal