Advisory Opinion No. 2002-64

Re: Betty L. Hubbard

QUESTION PRESENTED

The petitioner, a Jamestown Planning Commission member, a municipal appointed position, requests an advisory opinion as to whether she may participate and vote on matters involving a subdivision, given that her spouse, president of the Conanicut Island Land Trust (CILT), previously issued a non-tendered personal check to the property owner with an offer to purchase on behalf of the CILT.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Jamestown Planning Commission member, a municipal appointed position, may participate and vote on matters involving a subdivision, notwithstanding the fact that the Conanicut Island Land Trust (CILT), of which her spouse is president, previously offered to purchase said property. Despite the fact that her spouse issued a non-tendered personal check to the property owner on behalf of the CILT three years ago, no business association exists between the parties that would trigger the prohibitions of the Code of Ethics.

The petitioner represents that her spouse is president of the Conanicut Island Land Trust (CILT), which seeks to preserve and protect land in Jamestown. She advises that approximately three years ago her spouse approached a property owner with an offer to purchase land on behalf of the CILT. She indicates that the CILT authorized a good faith payment of $1,000 to the property owner. She informs that her spouse used their personal check, since no CILT check was available at the time. Despite subsequent meetings with the owner, the CILT never purchased the property nor was the check ever tendered. The petitioner represents that the property owner presently is before the Jamestown Planning Commission relative to a subdivision development on the same parcel.

Under the Code of Ethics, a public official 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. See R.I. Gen. Laws § 36-14-5(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 he represents. See R.I. Gen. Laws § 36-14-7(a). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

The Commission consistently has advised public officials that they may participate in matters involving property that they previously considered purchasing, provided that there is not any current negotiation for purchase of the property. See A.O. 99-34 (opining that a North Providence Zoning Board of Review member may participate and vote on a zoning application where he previously had considered purchasing the same property); A.O. 98-53 (advising Town Councilor that she may participate in the consideration of a zoning change for a developer where she and a private client met with the developer about the proposed unit, but where there are no active negotiations for the particular property at issue); A.O. 97-8 (finding that a Narragansett Town Councilor could participate in a matter for the same developer with whom he had discussed the purchase of property, but where there were no active negotiations). Similarly, the Commission has advised petitioners that they may not participate in matters where he or she is the intended purchaser of the subject property.

Presently, neither the petitioner nor the CILT has a financial interest in the subject property that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), and 7(a). The property owner is seeking Planning Commission approval to develop the subject parcel. Based upon the facts presented, the personal check offered in good faith on behalf of the CILT was never presented for payment and three years has passed since its issuance. To the extent that a business association ever existed among the parties, it would have existed between the CILT and the property owner. Absent any specific, identifiable conflicts of interest, no provisions of the Code of Ethics would prohibit the petitioner from participating and voting in the Jamestown Planning Commission’s consideration of matters involving the subject property.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

2001-24

2001-8

99-114

99-96

99-90

99-40

99-34

98-8

Keywords:

Business associate

Property interest