Advisory Opinion No. 2002-70

Re: Dale M. Grogan

QUESTION PRESENTED

The petitioner, a member of the North Kingstown Town Council, a municipal elected official, requests an advisory opinion as to whether she may participate and/or vote in matters involving the proposed Wickford Village Center Zoning District given that she rents retail space in the proposed Zoning District.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the North Kingstown Town Council, a municipal elected official, may not participate and/or vote on matters involving the proposed Wickford Village Center Zoning District given that such matters would likely impact her private financial interests as an operator of retail establishments within the proposed Wickford Village Center Zoning District.

The petitioner states that she is the president and sole shareholder of World Store, Ltd., which operates two retail establishments at 16 West Main Street in North Kingstown. Further, she states that she is one of several rental tenants at 16 West Main Street, which is owned by Donald Stone. The petitioner advises that the North Kingston Town Council is currently considering an ordinance that would create the Wickford Village Center Zoning District. The proposed ordinance would conform the zoning regulations applicable to the Wickford Village to the existing land use pattern in the area. The new zoning district is intended to encourage a mix of uses within the village center, limit the size of buildings, and modify development and dimensional requirements within the district to more accurately reflect and encourage the small lots and compact “to the street” development existing in the village center. It is also intended to encourage and preserve Wickford Village as a retail center and tourist destination. Although the petitioner’s businesses would be located in the proposed Wickford Village Center Zoning District, the Town Council’s legal counsel has opined that the terms of the ordinance would not adversely affect her retail stores since they were in existence prior to the passage of the ordinance.

Under the Code of Ethics, the petitioner, as a member of the North Kingston Town Council, may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her 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). She also is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a family member, business associate, or any business by which she is employed or represents. See 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 that when an issue came before them 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 that he should not participate in matters that directly affect his business and further advising that a direct impact is presumed to spring from matters involving any similar restaurant 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).

Here, the retail stores operated by World Store, Ltd. are located in the proposed Wickford Village Center Zoning District. While the petitioner represents that her stores are exempt from the requirements of the ordinance because they were in operation prior to the passage of this ordinance, the purpose of the ordinance appears to be to protect the viability of the entire Wickford Village Center as a retail area and tourist destination. Accordingly, notwithstanding the petitioner’s exemption from the ordinance, it is reasonably forseeable that her retail stores will benefit from the restrictions placed on others.

Additionally, the petitioner represents that she is a rental tenant in 16 West Main Street, which is owned by Donald Stone. While the petitioner represents that the proposed ordinance would not currently affect her retail stores, it is likely that they will affect the subsequent uses of the building. The Commission has consistently found that the landlord/tenant relationship rises to the level of business associates under the Code. See A.O. 2001-57 (concluding that a Central Falls City Councilor could not participate in matters that would have a financial impact upon his tenants, who are his business associates under the Code of Ethics). As such, the petitioner cannot participate and/or vote on matters that would affect her landlord, her business associate under the Code.

Accordingly, the petitioner must recuse from participating and/or voting on matters involving the proposed Wickford Village Center Zoning District that appear before her as a member of the North Kingston Town Council. Notice of recusal should be filed with both the Ethics Commission and the North Kingston Town Council in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

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

Related Advisory Opinions:

2002-23
2001-57
2000-62
99-122
99-9
98-151
98-131
98-123
96-70
96-24
94-24

Keywords:

Business interest
Competitor(s)
Recusal