Advisory Opinion No. 2003-60 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 the former Ladd Center, given that he owns property approximately 400 feet from the proposed location. 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 not participate and/or vote in matters regarding the former Ladd Center when he owns property approximately 400 feet from the property since it is 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 is a current member of the Exeter Town Council. He informs that the Town Council is currently considering matters relating to the development of the former Ladd Center. He informs that the Ladd Center is comprised of approximately 300 acres. He represents that he owns a 6-acre parcel of land that abuts an access road to the Ladd Center. Discussions are currently before the Town Council to determine the potential uses of a large portion of the former Ladd Center that is approximately 400 feet away from his property. Additionally, the petitioner informs that he has been appointed by the Council to sit on two task groups relating to the economic development of the former Ladd Center. The first task group’s primary focus is the determination of the future use for the former Ladd Center. This group will determine the maximum loading capacity for the septic and water systems. Additionally, this group will make recommendations to Community Planning and Development for possible and sustainable economic development scenarios. The second task group focus is the development of Route 2 & Route 3. The responsibilities of this group are to inventory and map all commercial and industrial property in the town, determine the current tax revenue of each property and to make recommendations with respect to tax policy in order to attract sustainable and environmentally appropriate new economic development. The petitioner seeks guidance as to whether he may participate in the Town Council’s consideration of matters relating to a portion of the former Ladd Center when his property is approximately 400 feet away. Further, he asks whether he may participate in both task groups given his property’s proximity to the former Ladd Center. 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. 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. 2002-16 (finding that a Richmond Planning Board member may not participate and/or vote on matters involving a proposed multi-use development to which he is an abutting property owner). 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 an analogous advisory opinion, A.O. 97-63, the Commission found that a member of the Exeter Planning Board could not participate and vote on a proposed combined preliminary and final plan for the development of a subdivision since he resided within 1000 feet of the development, requiring notice as an abutter under Exeter regulations. There, the Commission reasoned that since the petitioner resided within a close proximity of the proposed development and under Exeter regulations is an abutter, the decision on whether and how to subdivide property would likely have a financial impact on his property valuation. Additionally, the petitioner seeks clarification regarding a previous advisory opinion issued to him, A.O. 2002-13, which allowed him to participate in matters regarding a Job Corps Training Center, located at the former Ladd Center, when his property was approximately 3000 feet from the proposed site. In that instance, the petitioner was permitted to participate since the portion of the Ladd Center under development was approximately 3000 feet from his property. Additionally, the Town Council was not considering matters as to the use of the property since the use had already been decided prior to the petitioner’s election to office. Furthermore, the Town Council’s participation was limited to issues of construction and ongoing litigation to determine local jurisdiction, payment in lieu of taxes and issues of public safety. Here, the petitioner represents that his property is an estimated 400 feet from the proposed development. As such, under Exeter regulations the petitioner is an abutter to the proposed development. Furthermore, the future use of the remainder of the former Ladd Center has not been determined. Absent some evidence that actions taken by the Town Council regarding this development at the former Ladd Center would not affect the financial interests of the petitioner, he may not participate and/or vote in the Town Council’s consideration of the proposed development. Notice of recusal should be filed with the Town of Exeter and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Additionally, 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 proposed use of the former Ladd Center 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. Finally, the petitioner seeks guidance as to whether he may participate in two task force groups regarding the economic development of the Town. Based on the above analysis, the petitioner is prohibited from participating in matters regarding the former Ladd Center where it is reasonably foreseeable that his action will have a financial impact on his property. As such, based on representations made by the petitioner, the petitioner is prohibited from participating in the first task group, the Ladd Center Task Group, since it appears that the task group’s determination of the future use of the former Ladd Center will financially impact his property. With regard to the second task group, the Route 2 and Route 3 Development Task Group, the petitioner may participate, however, the petitioner must recuse if matters come before the task group that will have an impact upon his property. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-6001 39-14-7003 Related Advisory Opinions: 2002-65 2002-16 2002-13 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