Advisory Opinion No. 2002-65

Re: Michael N. Ricard

QUESTION PRESENTED

The petitioner, a Lincoln Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate and vote on a proposed 11-unit condominium development given that he resides within 205 feet of the proposed development.

RESPONSE

It is the opinion of the Ethics Commission that the petitioner, a Lincoln Planning Board member, a municipal appointed position, may not participate and vote on a proposed 11-unit condominium development based upon the proximity of his property to the proposed development.

The petitioner advises that the Lincoln Planning Board presently is considering a proposed 11-unit condominium project. He states that the preliminary plan presented to the Board depicted a corner of his property abutting the development, but it did not list him as an abutter. He represents that his property is approximately 205-210 feet from the nearest corner of the subject property.

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). 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 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 that substantial conflicts requiring recusal exist where the official is an abutter to the applicant, generally defined as residing within 200 feet of the property at issue. See, e.g., A.O. 95-27; A.O. 90-85; A.O. 90-34.

Here, the petitioner represents that his property is an estimated 205-210 feet from the proposed development. However, the Lincoln Town Planner advises that the petitioner’s property is in close proximity to the proposed development and is depicted as an abutting property on the preliminary plan. Further, the Town of Lincoln does not require notice to abutters where a development, such as the instant proposal, does not require any street creations or extensions. As such, whether the petitioner is an abutter entitled to notice is irrelevant for the purpose of this advisory opinion. Based upon the representations of both the petitioner and the Town Planner, the petitioner’s property is in close proximity to the subject property. Accordingly, absent some evidence that actions taken by the Planning Board regarding the proposed 11-unit condominium development would not affect the financial interests of the petitioner, he may not participate and/or vote in the Planning Board’s consideration of the proposed development. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Finally, pursuant to Regulation 7003 the petitioner may publicly express his own viewpoint in a public forum on any matter of general public interest or which directly affects him, his spouse or dependent children. Therefore, he may address the Planning Board regarding the proposed condominium development at a public meeting at which members of the public are invited to speak about the issue. However, he may not receive special access or priority not available to any other member of the public.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7003

Related Advisory Opinions:

2002-16

2001-19

97-63

96-63

95-83

92-24

91-75

90-85

90-34

Keywords:

Public Forum Exception

Property Interest