Advisory Opinion No. 2005-16 Re: James Durkin QUESTION PRESENTED: The petitioner, a member of the Narragansett Town Council, a municipal elected position, requests an advisory opinion as to whether he may attend a meeting of the Narragansett Town Council and present comments and testimony, as an abutter, to a change of zone request filed by an abutting property owner. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Narragansett Town Council, a municipal elected position, may attend and participate in meetings of the Town Council regarding a change of zone request where he is an abutter. The petitioner advises that he was elected to the Narragansett Town Council in November 2004. He represents that he is an abutting landowner to property which is the subject of a change of zone request by Sylvan and Patricia Vaicaitis. The petitioner has owned the property since 1998. The petitioner indicates that both properties are currently zoned for commercial use only. He informs that the Vaicaitises are petitioning the Narragansett Town Council to change the zoning restriction from commercial to residential use. The petitioner informs that the request for change of zone was filed prior to the petitioner being elected into office. The petitioner seeks guidance as to whether he may provide public testimony regarding this request by the applicants during a Town Council hearing. 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 he 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 position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself or any person within his family. 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. 2002-20; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90. Applying the presumption, the Commission frequently has stated that a public official may not participate in decisions concerning abutting property absent some evidence that official action would not affect the financial interests of the public official. Therefore, the petitioner should not participate in this matter as an official member of the Town Council and should recuse in accordance with R.I. Gen. Laws § 36-14-6. In addition to the prohibitions of Code sections (a) and (d) discussed above, a public official may not represent himself or any other person before the agency of which he is a member or by which he is employed. See R.I. Gen. Laws § § 36-14-5(e)(1) and (2). Accordingly, a Town Council member is generally prohibited from representing himself in a matter pending before the Council. However, Commission Regulation 7003, sometimes called the “public forum exception” 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 or his spouse or dependent child. Here, the petitioner wishes to appear before the Town Council to provide public testimony regarding a change in zoning for land that abuts his property. In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2003-15 (advising that a member of the Scituate Town Council may attend and participate in meetings of the Zoning Board regarding a special use permit application where he is an abutter provided that he does not receive special access or priority not available to any other member of the public); A.O. 2002-65 (advising that a member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public); A.O. 97-85 (opining that the Central Falls City Solicitor may testify as a private citizen at a Central Falls Liquor Board hearing regarding the revocation of a liquor license of a bar located adjacent to the petitioner's private law offices); and A.O. 2001-9 (finding that member of the Tiverton Town Council may provide public comment before the Council in his individual capacity on the general issue of sewerage services when such matters would impact his private financial interests as the owner of a septic tank cleaning service, provided that he does so in a public forum and is afforded no greater access to the Council by virtue of his public office). Consistent with these prior opinions, it is the opinion of the Commission that the petitioner may address the Town Council regarding a change of zone application for abutting land as long as he does not receive access or priority not available to any member of the public. We further caution the petitioner that he may not in any way use his position to influence members of the Town Council. See R.I. Gen. Laws 36-14-5(d). Finally, as previously stated, the petitioner must recuse from participation and voting on this matter in accordance with R.I. Gen. Laws § 36-14-6. Notice of recusal must be filed with the Narragansett Town Council and the Rhode Island Ethics Commission. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) 36-14-7003 Related Advisory Opinions: 2003-15 2002-65 2002-20 2001-9 98-3 97-114 97-85 Keywords: Public Forum Exception Property Interest