Advisory Opinion No. 2004-15

Re: Renate Aker

QUESTION PRESENTED:

The petitioner, a member of the Exeter Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding her ability to participate in the Zoning Board’s consideration of an appeal concerning a cease and desist order issued by the zoning inspector.

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 participate in the consideration of an appeal concerning a cease and desist order issued by the zoning inspector, given that she has no interest, financial or otherwise, in the subject property.

The petitioner makes the following representations: In October 2003, the zoning inspector, Paul A. Ward, issued a Cease and Desist Order to Robert and Kathryn Dyson (the Dysons or appellants) for alleged violations of the Exeter Zoning Ordinance. This decision of the zoning inspector is now the subject of an appeal before the Zoning Board. At the commencement of the appeal, counsel for the Dysons, Domenic A. Mosca, Jr., alleged that petitioner could not be fair and impartial in her consideration of the appeal and suggested that she recuse herself from consideration thereof. As evidence of petitioner’s alleged bias, Mosca solicited testimony from the Town’s former zoning inspector, Paul Picerne, who testified that petitioner had previously questioned him about the status of the Dysons’ property. Picerne was not certain whether petitioner’s inquiry occurred during the course of a public Zoning Board meeting or during a private conversation. Notwithstanding, petitioner informs that she has no interest, financial or otherwise, in the Dysons’ property.

Under the Code of Ethics, a municipal appointed official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties 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 it is likely 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 or a business associate. See R.I. Gen. Laws § 36-14-7(a).

In past opinions, we found a substantial conflict necessitating recusal in situations where the official (or a family member) owns property that abuts the subject property. However, in situations where the official had no interest in the subject matter, recusal was not necessary.

Compare A.O. 2003-27 (concluding that a member of the Middletown Town Council could not participate in the consideration of a proposed development since there was evidence that she would be impacted financially, namely that her brother-in-law owned property abutting the subject property); with A.O. 2002-30 (concluding that a member of the Jamestown Town Council could participate in the determination of a location for a highway garage since there was no evidence that she would be impacted financially by the decision); A.O. 99-148 (concluding that a member of the North Smithfield Town Council could participate in the consideration of a proposed zoning change since there was no evidence that she would be impacted financially by the decision); A.O. 98-102 (concluding that a member of the East Providence Zoning Board could participate in consideration of a request for variance since there was not sufficient evidence that his property would be impacted financially by the decision); A.O. 98-92 (concluding that a member of the Lincoln Zoning Board could participate in the appellate review of a Planning Board decision since there was not sufficient evidence that her property would be impacted financially by the decision).

Here, there is no evidence that petitioner will derive a financial gain or suffer a financial loss as a result of the Zoning Board’s determination. Despite appellants’ allegations of petitioner’s former interest in the property, the Code of Ethics does not prohibit her from participating and voting in the Zoning Board’s consideration of this matter.

Code Citations:

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

2003-27

2002-30

2001-19

99-148

99-99

98-102

98-92

98-58

Keywords:

Recusal