Advisory Opinion No. 2005-4

Re: Henry L.P. Beckwith

QUESTION PRESENTED:

The petitioner, a member of the North Kingstown Historic District Commission (“NKHDC”), a municipal appointed position, and also a member of a property oversight committee for the Episcopal Diocese of Rhode Island (“Diocese”) requests an advisory opinion as to whether he may participate and vote on an application made by the Town of North Kingstown to the NKHDC to replace and improve existing sidewalks, curbs and lighting in the Town, including an area that fronts property owned by the Diocese.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the NKHDC, a municipal appointed position, may participate and vote on an application made by the Town to replace and improve existing sidewalks, curbs and lighting in the Town, including an area that fronts property owned by the Diocese.

The petitioner is a member of the NKHDC. He represents that in his private capacity he is a member of a property oversight committee for the Diocese. The petitioner advises that his membership on the property oversight committee is strictly voluntary, is not a paid position, and he has served on said committee since 1970. The petitioner further advises that the committee simply cares for property owned by the Diocese throughout the State of Rhode Island, which includes St. Paul’s Church and Meeting House in Wickford, Rhode Island. The petitioner informs that caring for the property, for example, would be to ensure that the grass was cut or if a tree were dying, the committee would hire a professional take care of the problem.

The petitioner advises that the Town has made an application to the NKHDC to replace sidewalks, curbs, and existing street lighting for the entire length and both sides of Main Street in Wickford Village (some 1700 feet in length). The Town is presenting the entire job as one application. Included within this application is property owned by the Diocese and described by the petitioner as a grassed walkway/park with a 30-foot frontage on the street. The sidewalk is made of cement and the curb is made of granite. There is one street light directly in the front of the property owned by the Diocese which will be replaced. Other than a new street light fixture, the sidewalk and curb will be replaced with similar cement and granite.

The petitioner informs that the property owned by the Diocese is in perfect condition and is not in need of the new repairs. Despite this fact, the Town intends to make the repairs because it involves the entire street. The petitioner further advises that the Diocese is not paying for the repairs, did not request the repairs, and has nothing to gain or lose from the repairs made to Main Street. The petitioner advises that neither he nor the Diocese will be affected in any way by the renovation project and will not voice an opinion one way or another to the NKHDC or the Town. Given all of these representations, the petitioner asks whether he may participate in the NKHDC’s review of the Town’s application.

Under the Code of Ethics, the petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). The petitioner may not participate in any matter in which he has an interest, 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). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a).

A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Past advisory opinions have opined that public officials are business associates of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 2002-6 (advising that members of the Westerly Town council who hold leadership positions in the Chamber of Commerce are prohibited from participating in matters involving the Chamber of Commerce since they are business associates).

In the instant matter, based upon the representations made by the petitioner and information available to the Commission, the petitioner does not appear to be a business associate of the Diocese. Although he serves on a property oversight committee, he does not hold a leadership position which would “permit him to affect the financial objective of the organization.” However, assuming arguendo that the petitioner was a business associate of the Diocese, the Code of Ethics would not prohibit him from participating and voting on the application at issue since there is no evidence the that the petitioner or the Diocese will receive any financial gain or suffer a financial loss as a result of the petitioner’s vote on the application. Indeed, the petitioner expressly represents that the Diocese does not have an opinion on the proposed renovations and will not gain or lose anything if the renovations are approved. Accordingly, the Code of Ethics does not prohibit the petitioner from participating and voting in the NKHDC’s consideration of this matter.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2004-31

2004-15

2003-57

Keywords:

Business Associate

Voting

Benefit Accrued