Advisory Opinion No. 2003-13

Re: Michael C. Cerullo

QUESTION PRESENTED

The petitioner, a member of the Exeter Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate and/or vote in matters regarding a Job Corps Training Center to be located at the former Ladd Center, given that he owns property approximately 3000 feet from the proposed project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Exeter Town Council, a municipal elected position, may participate and/or vote in matters regarding a Job Corps Training Center to be located at the former Ladd Center when he owns property approximately 3000 feet from the park since it is not reasonably forseeable that the petitioner would derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s actions.

The petitioner represents that prior to his election to Town Council, the Council entered into litigation against both the State and Federal government to determine whether the State or Federal government must conform to the local planning process and zoning regulations with respect to the development of a Job Corps Training Center at the former Ladd Center. The petitioner represents that he owns a 6-acre parcel of land that is approximately 3000 feet from the former Ladd Center. Additionally, the petitioner represents that the westernmost corner of his property is approximately 100 feet from Green Lane, an emergency road that leads to the former Ladd Center. He states that this road is chained off and for emergency use only. The petitioner states that the Town Council is not considering matters as to the use of the property since the use for the property has already been decided when the Federal government entered into a lease on August 3, 2000 to construct the Job Corps Training Center. He represents that the Town Council’s participation would be limited to issues of construction and ongoing litigation to determine local jurisdiction, payment in lieu of taxes and issues of public safety. The petitioner seeks guidance as to whether he may participate in matters affecting the former Ladd Center when his property is approximately 3000 feet away.

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 it is reasonably foreseeable 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. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Section 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, a business associate or any person within his family.

In previous advisory opinions, the Commission has concluded that town officials may not participate and vote on matters located adjacent to their property where they would have a direct financial interest in any official activity affecting the property. See, e.g., A.O. 2002-65 (opining that a Lincoln Planning Board member may not participate and/or vote on a proposed condominium development located approximately 200 feet from his property); 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). 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.

In past opinions, the Commission has applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99; A.O. 98-92; A.O. 98-66; A.O. 98-56; A.O. 98-35; A.O. 98-19; A.O. 97-76; A.O. 97-63. Applying the presumption, the Commission frequently has stated that a public official may not participate in a decision concerning abutting property absent some evidence that the decision would not affect the financial interests of the public official.

However, here the petitioner is not an abutter to the former Ladd Center. The word “abutter” is a term of art, defined in the Rhode Island General Laws as “[o]ne whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land.” R.I. Gen. Laws § 45-24-31(1). State law also requires that notice of a proposed amendment to a zoning ordinance be sent to all owners of real property whose property is located in or within not less than two hundred feet (200') of the perimeter of the area proposed for change. See R.I. Gen. Laws § 45-24-53(c)(2).

In an analogous advisory opinion, the Commission opined that the Code of Ethics does not prohibit a member of the Jamestown Town Council from participating in the Council’s determination of a location of a highway garage when her property was approximately 1000 feet away. There, the Commission opined that the petitioner was not an abutter and as such there was no presumption of a financial impact. See A.O. 2002-30.

Under the facts as represented by the petitioner, his property neither adjoins the former Ladd Center, nor is it within 200 feet of the property. Rather, the petitioner claims that the property is approximately 3000 feet away from his land. Here, since the petitioner is not an abutter, there should be no presumption of a financial impact. Rather, based upon the past advisory opinions discussed above, absent some evidence indicating a reasonable forseeability of financial impact, the Code of Ethics does not prohibit the petitioner from participating and voting in matters before the Town Council regarding the former Ladd Center.

Additionally, the petitioner represents that the westernmost corner of his property is approximately 100 feet from Green Lane. The petitioner states that Green Lane is an emergency access road connecting to the former Ladd Center. He states that this road is chained off and is not used as a means of ingress or egress. The petitioner represents that there are currently no matters before the Town Council regarding the status of Green Lane.

Here, the petitioner’s property is approximately 100 feet from Green Lane. Given this proximity, it is reasonably forseeable that Town Council action concerning Green Lane would have a financial impact upon the petitioner’s property. Accordingly, if matters come before the Town Council regarding Green Lane, the petitioner may not participate and/or vote in the Council’s consideration of such matters. Notice of recusal should be filed with the Ethics Commission 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)

36-14-6001

Related Advisory Opinions:

2002-65

2002-30

2002-16

2001-19

2001-4

2000-90

99-148

99-99

98-167

98-92

98-66

98-56

98-35

98-19

97-76

97-63

95-27

Keywords:

Abutter

Property Interest

Recusal