Advisory Opinion No. 2002-26

Re: Raymond M. Gannon

QUESTION PRESENTED

The Pawtucket Assistant City Solicitor requests an advisory opinion on behalf of the petitioner, a Pawtucket Zoning Board of Review member, a municipal appointed position, as to whether he may participate and/or vote in the Zoning Board’s consideration of matters in which his nephew is the applicant’s attorney.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a Pawtucket Zoning Board of Review member, a municipal appointed position, from participating and/or voting in the Zoning Board’s consideration of matters in which his nephew is the applicant’s attorney.

Under the Code of Ethics, a public official may not participate in a matter in which he or his family has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his public duties. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the official has reason to believe or expect that he, a member of his family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I.Gen. Laws §§ 36-14-5(a), 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. Commission Regulation 35-14-5005 extends the prohibitions set forth in R.I. Gen. Laws § 36-14-5 to nephews, whether by blood, marriage or adoption.

The petitioner, Chairman of the Pawtucket Zoning Board of Review, advises that his nephew, John T. Gannon, Esq., regularly represents applicants for relief before the Zoning Board. He represents that his nephew charges an hourly fee for his representation of applicants and does not work on a contingent fee basis. He states that his nephew is remunerated whether or not his client prevails or is granted the specific relief sought. He further maintains that he is able to vote and otherwise participate fairly, objectively and in the public interest when his nephew represents applicants before his Board.

The Commission previously has ruled that public officials faced with making a governmental decision that may affect a family member’s interests must exercise notice and recusal when such matters arise. See A.O. 95-114 (concluding that a Richmond Town Councilor may not participate in any matter in which his brother or his brother's law firm enters an appearance on behalf of a client/developer, or otherwise involves potential financial benefit for his brother or his brother's law firm); A.O. 99- 48 (advising that a Cumberland Town Councilor may not vote on the appointment of his uncle to a position in the Town since his uncle is a “family member”); A.O. 99-93 (advising a State Senator that she may not participate in or vote on legislation designed to revamp the system for managing traffic offenses because the legislation relates to and affects the petitioner’s daughter as a Municipal Court Judge).

In an analogous opinion, the Commission found that a Newport City Councilor could not participate in matters where his brother-in-law, an attorney, appeared before the Council if it involved a potential financial benefit, such as fees, for his brother-in-law. See e.g., A.O. 2000-23. Accordingly, the petitioner may not participate in the Pawtucket Zoning Board’s consideration of matters where his nephew represents applicants for relief before the Board. Notice of recusal should be filed with both the Ethics Commission and the Pawtucket Zoning Board in accordance with R.I. Gen. Laws § 36-14-6.

Finally, the petitioner asserts that no conflict of interest would arise by reason of his participation in such Zoning Board matters, given that his nephew would receive remuneration on an hourly basis, regardless of the Board’s disposition of such matters. Nonetheless, the Commission finds that the petitioner has reason to believe or expect that his nephew would derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. By his participation, the petitioner would be in a position to affect the duration of Board hearings through questioning, substantive discussion, requests for additional information and/or continuances. Given that his nephew is retained on an hourly basis, such participation likely would affect his remuneration for appearing before the Zoning Board.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)
36-14-5005

Related Advisory Opinions:

2000-23
99-93
99-48
97-135
95-114
95-89

Keywords:

Family: Acting as agent