Advisory Opinion No. 2002-23

Re: Joseph R. Paolino


The petitioner, a Coastal Resource Management Council (CRMC) member, a state appointed position, requests an advisory opinion as to whether he may participate and/or vote on matters that affect Waites Wharf given that he is an owner and operator of another marina on Newport Harbor.


It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Coastal Resource Management Council (CRMC) member, a state appointed position, may not participate in the CRMC’s consideration of matters involving Waites Wharf, given that such matters likely would impact his private financial interests as the owner of another marina that is in close proximity. See R.I. Gen. Laws §§ 36-14-5(a), (b) and (d).

The petitioner advises that he is the owner and operator of Brown & Howard Wharf Marina on Newport Harbor. He informs that Harbor Realty, LLC. owns another marina on Newport Harbor, Waites Wharf, which is located approximately 1,500 feet from Brown & Howard Wharf Marina. The Coastal Resource Management Council (CRMC) currently is in subcommittee meetings regarding issues relative to the expansion of Waites Wharf and those issues will soon be before the full CRMC for a vote.

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. Substantial conflict is defined as a "direct monetary gain or a direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the petitioner shall not use his office to obtain financial gain other than as provided by law. R.I. Gen. Laws § 36-14-5(d).

The Commission has issued previous advisory opinions addressing similar issues. The Commission has advised members of town and city councils with interests in restaurants/liquor establishments that the law did not prohibit them from serving on the town or city council and, generally, from considering matters relating to the zoning or licensing of restaurants and bars. The Commission further has advised, however, that when an issue came before the council involving a competing business that was in reasonably close proximity to the official’s own, or that otherwise directly impacted the business in which the official had an economic interest, recusal was required in accordance with R.I. Gen. Laws § 36-14-6. See,e.g., A.O. 99-9 (advising a member of the Narragansett Town Council who owns a restaurant holding a liquor license that he should not participate in matters that directly affect his business and further advising that a direct impact is presumed for any establishment within a close proximity to or otherwise in direct competition with his restaurants); A.O. 96-70 (finding that a member of the Newport City Council must recuse himself from zoning or licensing matters that concern other restaurants, bars and businesses that are in close proximity to or otherwise directly impact the petitioner’s business); A.O. 94-24 (concluding that the Mayor, as a member of the Board of Licenses Commission and as a part-owner of a family business holding a liquor license, should not participate in decisions involving his family’s competitors).

In past advisory opinions, the Commission has required a public official to recuse himself from participation and/or vote on any matter in which he has a business or financial interest, or which involves the financial interests of a direct competitor. Here, Waites Wharf is located approximately 1,500 feet from the Brown & Howard Wharf Marina. Both wharves contain or are proposed to contain various restaurants, nightclubs, and retail establishments. Waites Wharf is both in close proximity to and direct competition with the petitioner’s wharf. It is reasonably foreseeable that matters concerning the development of Waites Wharf may have a direct financial impact upon the Brown & Howard Wharf, as well as upon its competitors. Accordingly, the petitioner must recuse from participating and/or voting on matters involving Waites Wharf that appear before him as a member of the CRMC. Notice of recusal should be filed with both the Ethics Commission and the Coastal Resource Management Council in accordance with R.I. Gen. Laws § 36-14-6.

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