Advisory Opinion No. 2004-12

Re: Daniel W. Patterson

QUESTION PRESENTED:

The petitioner, a member of the Exeter Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding his ability to participate in the Zoning Board’s consideration of an appeal concerning a cease and desist order issued by the zoning inspector, given that petitioner’s brother-in-law owns property that directly abuts the subject property.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Exeter Zoning Board of Review, a municipal appointed position, may not participate in the consideration of an appeal concerning a cease and desist order issued by the zoning inspector, given that petitioner’s brother-in-law owns property that directly abuts the subject property.

The petitioner represents that after his appointment to the Zoning Board, the zoning inspector issued a cease and desist order against a certain property. This decision of the zoning inspector is now the subject of an appeal before the Zoning Board. The petitioner informs that his brother-in-law owns property which directly abuts the property at issue. Given these representations, the petitioner seeks guidance as to whether he may participate in the Zoning Board’s consideration of the matter.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, direct or indirect, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and 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 or her official duties if he or she has a reason to believe or expect 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. See R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(d) further prohibits an official from using his or her position or confidential information received though his or her position to obtain financial gain, other than that provided by law, for himself or herself or any person within his or her family. Additionally, Commission Regulation 36-14-5005 extends the definition of family members to brothers-in-law.

The Commission previously has concluded that the Code of Ethics prohibits public officials from participating in matters that may affect their families, including decisions regarding property. See A.O. 2003-27 (concluding that a Middletown Town Council member could not participate in matters regarding a proposed commercial development given that her brother-in-law was an abutter to the subject property); A.O. 2000-90 (concluding that an Exeter Planning Board candidate could not participate in the Planning Board’s consideration of matters involving a research and technology park given that his mother-in-law was an abutter to the subject property); A.O. 1998-39 (concluding that the Coventry Town Solicitor could not advise the Council regarding parcels that are adjacent to land owned by a corporation in which his brother-in-law has a substantial interest); A.O. 1997-76 (finding a Coventry Planning Commission member could not participate in matters relating to a proposed subdivision given that her brother was an abutter to the subject property). Here, absent some evidence that action by the Zoning Board of Review regarding the property would not affect the financial interests of his brother-in-law as an abutter, the petitioner may not participate in the Zoning Board’s consideration of an appeal concerning a cease and desist order issued by the zoning inspector, given that petitioner’s brother-in-law owns property that directly abuts the subject property. Notice of recusal should be filed both with the Exeter Zoning Board of Review and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5005

36-14-6

36-14-7(a)

Related Advisory Opinions:

2003-27

2000-90

99-99

99-34

98-47

98-39

98-26

97-76

Keywords:

Family: property interest

Recusal