Advisory Opinion No. 2003-12

Re: Sharyn Iannuccilli

QUESTION PRESENTED

The petitioner, an East Greenwich Town Council member, a municipal elected position, requests an advisory opinion as to whether she may participate in the Council’s consideration of two distinct requests for zoning changes made by a single developer who has had past business relationships with the petitioner's brother-in-law, the part-owner of a real estate office.

PROCEDURAL ISSUES

At the outset, it should be noted that the petitioner is currently the subject of an ethics complaint filed with the Commission (Complaint No. 2002-9). The Commission will generally decline to answer requests for an advisory opinion that raise issues that are the subject of a pending complaint, or that seek the Commission's opinion on past conduct. Although there are similarities between the allegations of the above-referenced complaint and the questions presented in the petitioner's request for an advisory opinion, the Commission considers the issues raised in the petitioner's request to be sufficiently distinct and forward-looking to merit the issuance of an advisory opinion. In this opinion, the Commission takes no position as to the allegations made in, the issues raised by or the merits of Complaint No. 2002-9.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an East Greenwich Town Council member, a municipal elected position, may not participate in the consideration of one particular zoning matter involving a development ("hereinafter "Development A"), where the petitioner's brother-in-law previously served as an unpaid advisor for Development A, and where the brother-in-law intends to seek and hopes to obtain its real estate listing. As to a second development (hereinafter "Development B") for which the developer will also seek a change in zoning, it is the opinion of the Commission that the petitioner may participate in the Town Council's decision, given that the petitioner's family member has no reasonably foreseeable association with that project.

The petitioner states that her husband and her brother-in-law are the owners of a REMAX real estate franchise in East Greenwich. In addition to owning the franchise, her spouse and brother-in-law act as real estate agents for the business, and also provide office space and services to other real estate agents. These other agents compensate the franchise for their use of office space, supplies and other items through the payment of a fixed, monthly fee and the payment of a service fee of 5% of their sales commissions.

The petitioner advises that the East Greenwich Town Council is scheduled to consider requests for zoning changes for two developments, "Development A" and "Development B," both owned by Thomas Primeau ("Primeau"). Both of these developments have had preliminary hearings before the Council, and petitioner states that she has recused in both matters to date out of an abundance of caution. Going forward, she wishes to know if such recusal is required under the Code of Ethics.

The petitioner represents that her brother-in-law has, in the past, acted in a non-compensated, advisory capacity for Primeau in relation to Development A. She further represents that while there has been no promise by Primeau to her brother-in-law regarding his listing the sale of Development A, her brother-in-law's uncompensated consulting work was consistent with his desire to eventually obtain the listing. The petitioner also notes that recently Primeau had listed a third, unrelated development for sale with petitioner's brother-in-law, but that this listing was withdrawn for unspecified reasons three weeks prior to the petitioner's request for an advisory opinion. The petitioner asks whether, given the aforedescribed facts, she may participate and/or vote in the Town Council's consideration of Primeau's petition to change the zoning for Development A.

Under the Code of Ethics, a public official may not participate in a matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if the public official has reason to believe or expect that she, a member of her family, or her business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is "reasonably foreseeable." Commission Regulation 36-14-7001. The probability must be greater than "conceivably," but it need not be certain to occur. Id. Furthermore, a public official 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, her business associate or a family member. R.I. Gen. Laws § 36-14-5(d). Pursuant to R.I. Gen. Laws § 36-14-2(1), both petitioner's husband and her brother-in-law are considered to be a family member. Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any person joined with another person “to achieve a common financial objective."

In cases where an official decision was likely to affect the financial interests of a public official's family member, the Commission consistently required that the public official recuse herself from participation and vote on the decision. See A.O. 99-99 (planning board member may not participate in decisions regarding proposed subdivision in the Town given that his daughter owns land abutting the project); A.O. 2001-4 (town councilor must recuse from participating and voting on council matters involving Wal Mart expansion given that his daughter owns property that directly abuts Wal Mart); A.O. 99-15 (city councilor may not participate in decision to recognize Local 1033 as the exclusive bargaining unit for additional city employee positions given that her brother serves in one of the positions affected).

Applying the reasoning of these prior advisory opinions to the instant matter, the Commission concludes that the petitioner must recuse from participation and vote on Primeau's request for a change in zoning for Development A. It seems reasonable and likely that the petitioner's brother-in-law's prior work for the Developer as an unpaid advisor on the subject development was in an effort to eventually obtain a listing for the development. Furthermore, the petitioner's brother-in-law was recently the listing agent on another of the Developer's properties. Given these representations, we find it more than "conceivable" that the petitioner's brother-in-law may obtain the listing for Development A. If so, then it is reasonably foreseeable that he will be financially impacted by any decision of the Town Council relative to Development A. See e.g. A.O. 94-60 (concluding that a North Kingstown Planning Commission member may not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future). Notice of recusal should be filed with the East Greenwich Town Council and with the Ethics Commission. R.I. Gen. Laws § 36-14-6.

As to Primeau's application to the Town Council to change zoning on Development B, the petitioner may participate and vote. The petitioner represents that her brother-in-law has had no interaction with Primeau relative to Development B, paid or unpaid. She further represents that she is not aware of any efforts by her brother-in-law or any REMAX agent to obtain the listing for Development B.

The Commission has considered similar questions in the past. In Advisory Opinion 2002-41, a Westerly Town Council member asked whether he could participate in Council matters involving the rezoning of land owned by a Mr. Robert Lucey, where Mr. Lucey had an ongoing business relationship with the Councilor's father, a real estate broker. The Commission concluded that absent any indication that the Town Council's zoning decision would financially impact the Councilor's father, the Code did not prohibit the Councilor from participating in a zoning matter that would benefit the Councilor's father's business associate.

In Advisory Opinion 95-114, a Richmond Town Councilor asked whether he could participate and vote on Council matters pertaining to impact fees, where a developer who would likely appear before the Council concerning said fees had retained the Councilor's brother as an attorney in other matters. The Commission opined that the Town Councilor could participate in matters involving developers who also happen to be clients of his brother or his brother's law firm, but cautioned that the Councilor would be required to recuse if the circumstances indicated that his brother or his brother's law firm likely would receive a direct financial benefit as a result of the action pending before the Town Council.

In these prior advisory opinions, the public official was permitted to participate and vote in a matter involving the business associate of his family member, as long as there was no indication that the matter voted on would financially impact the family member. Similarly, in the instant matter under the facts as represented by the petitioner, it is not reasonably foreseeable that the petitioner's brother-in-law or other family member stands to be financially impacted by the zoning of Development B. For this reason, the petitioner may participate and vote in that matter. The petitioner is cautioned, though, that if in the future the REMAX office becomes involved in Development B, she should recuse from further participation or seek additional advice from the Ethics Commission.

Code Citations:

36-14-2(1)

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2002-41

2001-4

99-99

99-85

99-24

99-15

98-25

95-114

Keywords:

Family Member

Client's Interest

Business Associate

Nepotism