Advisory Opinion No. 2005-20 Re: Lucien E. Benoit, DDS QUESTION PRESENTED: The petitioner, a member and the Chairman of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics requires that he recuse from participating in a Planning Board application upon which he has previously made public comments of support. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not require the petitioner, a member and the Chairman of the North Smithfield Planning Board, a municipal appointed position, to recuse from participating in a Planning Board application upon which he has previously made public comments of support. The petitioner is the Chairman of the North Smithfield Planning Board. He states that previously the Planning Board considered and unanimously approved an application for approval of a master plan for "Dowling Village." Approximately two weeks later, according to the petitioner, he wrote a letter that was published in the Providence Journal explaining the reasons behind his support and the Planning Board's approval of the development. The petitioner asserts that his support for the development was based upon the benefits to the Town and its residents, and that the development will not result in a direct financial benefit or detriment accruing to him, his family members, business associates or employers. The petitioner advises that the development will shortly come before the Planning Board on an application for an amended master plan, and then for preliminary and final approval. According to the petitioner, a local grassroots organization, the Valley Alliance for Smart Growth (VASG), has objected to the petitioner's further participation in the Dowling Village development based upon his previously expressed, public comments in support of the development. In light of this objection, the petitioner seeks advice from the Commission as to whether the Code of Ethics requires his recusal from future Planning Board consideration of Dowling Village. 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. R.I. Gen. Laws § 36-14-5(a). A public official 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 the official’s activity, to himself, a family member, a business associate, or any business by which the official is employed or represents. R.I. Gen. Laws § 36-14-7(a). The Code further prohibits an official from using his public office or confidential information received though his holding public office to obtain financial gain, other than that provided by law, for himself or any person within his family, any business associate or any business by which he is employed or represents. R.I. Gen. Laws § 36-14-5(d). Applying these provisions to the facts as represented by the petitioner, the Code of Ethics does not require the petitioner's recusal from Planning Board consideration of the Dowling Village development. There is no indication of a financial benefit or detriment accruing to the petitioner, his family members, his business associates or to any employer. Although the views expressed in the petitioner's letter to the Providence Journal may be indicative of an existing, personal inclination for development, such preference alone does not support mandatory recusal under the Code of Ethics. The petitioner is advised that this opinion solely addresses whether the Code of Ethics requires the petitioner's recusal. This opinion does not, and cannot, address whether any other statute, judicial decision, ruling, charter provision, ordinance, regulation or policy requires recusal under these facts. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-7(a) Keywords: Recusal