Advisory Opinion No. 2003-59

Re: John F. Winfield, Jr.

QUESTION PRESENTED

The petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate and/or vote in matters regarding an increase in the number of liquor licenses in the Town, given he is an abutter to a business that has applied for a license.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Scituate Town Council, a municipal elected position, may not participate and/or vote in matters regarding an increase in the number of liquor licenses in the Town since it is reasonably foreseeable that the petitioner would derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s actions

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. Finally, Commission Regulation 7003 provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual, his spouse or dependent child.

The petitioner represents that he is the owner of Winfield and Sons Funeral home, located in the Town of Scituate. He states that a matter is currently before the Town Council to increase the number of liquor licenses. He informs that a business abutting his property, Famous Pizza, has applied for a liquor license in order to open Bentley’s Tavern. He informs that when the matter was before the Zoning Board for approval, he properly received notice as an abutter. The Town Clerk informs that the proposed tavern passed both the Planning Board and Zoning Board requirements. However, she states that while the tavern met both requirements, no license was currently available to issue to the tavern. Prompted by the application of Famous Pizza, the Town Council is considering increasing the number of liquor licenses. The petitioner seeks guidance as to whether he may participate in the Town Council’s consideration of matters involving the increase in the number of liquor licenses when a business that abuts his property has applied for the license.

In previous advisory opinions, the Commission has concluded that town officials may not participate and vote on matters involving property 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.

In the present matter, the petitioner is an abutter to the proposed tavern. 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). Furthermore, the petitioner informs that when the matter was before the Zoning Board he was properly notified as an abutter.

Here, the action being considered by the Town Council is the increase in the number of liquor licenses. Such action is necessary in order for the tavern to be able to receive such license. Given the fact that the petitioner is an abutter to the proposed tavern, it is reasonable forseeable that the decision whether to increase the number of liquor licenses would affect his financial interests. As such, the petitioner may not participate and/or vote in the Town Council’s consideration of matters involving an increase in the number of liquor licenses since he is an abutter to a business that has applied for the license. Notice of recusal should be filed both with the Ethics Commission and the Town of Scituate 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 Town Council regarding the increase in liquor licenses 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)

36-14-6001

36-14-7003

Related Advisory Opinions:

2003-13

2002-65

2002-30

2002-16

2001-19

2001-4

2000-90

99-148

99-99

98-92

98-66

98-56

98-35

98-19

97-76

97-63

95-27

Keywords:

Abutter

Property Interest

Recusal