Advisory Opinion No. 2005-58 Re: David A. Lovett QUESTION PRESENTED: The petitioner, the President of the North Smithfield Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate in and vote on pending litigation affecting a land development project for the Slatersville Mill that required abutters’ notice be sent to residents within 200 feet of the project, given that he lives within 480 feet of the project and he has not received said notice. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the President of the North Smithfield Town Council, a municipal elected position, may participate in and vote on pending litigation affecting a land development project for the Slatersville Mill that required abutters’ notice to residents within 200 feet of the project, given that he lives within 480 feet of the project and he did not receive said notice. The petitioner informs that he is the President of the North Smithfield Town Council. He represents that the Town Council consists of five elected members charged by the North Smithfield Charter to exercise certain powers for the governance of North Smithfield. He states these powers include voting on the disposition and settlement of pending litigation against the town, including the litigation now before the Town Council. As regards to the development project, the petitioner represents that the Slatersville Mill the “Mill”) is being renovated by developers for the purpose of constructing condominiums and limited commercial units on Plat 4, Lot 41 and Plat 5, Lot 32. The petitioner provides the Commission with supplemental information on this project, including two maps and a faxed statement, which are labeled as separate exhibits. The petitioner informs that this project required the review of the North Smithfield Planning Board and Zoning Board. The petitioner states that the North Smithfield Planning Board granted approval of the Master Plan for the project, which required the Planning Board to issue notice to abutters within 200 feet of the project. The petitioner also informs that certain zoning variances were requested from the North Smithfield Zoning Board, which required the Zoning Board to also issue notice to abutters within 200 feet of the project. The petitioner represents that the North Smithfield Zoning Board granted certain variances with conditions to the developers and denied the issuance of a “builder’s permit.” The petitioner informs that the Mill’s developers appealed the Zoning Board’s decision to the Rhode Island Superior Court seeking damages and relief, including the issuance of a builder’s permit. The petitioner represents that the parties to this case are attempting to avoid the large expenses imminently to ensue from this suit and that the Assistant Solicitor of North Smithfield handling the case is going to address the Town Council concerning a vote on the possible disposition of the matter prior to the commencement of additional proceedings. Regarding his proximity to the Mill, the petitioner informs that the property at which he lives is located at 116 School Street, Lot 145. He points out that he does not own his residence and that his family rents it from his mother, who owns the property. He informs that this residence is located 480 feet from a long tail of a prominence of land at Lot 32 that runs along the Branch River and is part of the developer’s ownership interest. He states that the closest portion of this property to his residence is in the waters of the Branch River, which is not to be altered by the developers. The petitioner provides the Commission with a map, Exhibit A, showing the relevant properties. He points out that the portion of Lot 41 containing the structures that are to be renovated and constructed by developers is located at the other end of the property. The petitioner provides a statement from the North Smithfield Town Planner that the petitioner’s residence is approximately 2683 feet from the nearest structures under renovation. The petitioner provides this statement as Exhibit C and demonstrates this distance on Exhibit B. Additionally, the petitioner represents that he cannot see the construction of the development from his residence and that all ingress and egress is on the RailroadStreetBridge, which he represents is thousands of feet from his residence. Furthermore, he informs that the project will not have a financial impact on his mother’s property, and that neither his family nor he himself has any relation with or interest in the property at issue or in the entities that own or are developing the Mill. 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 it is reasonably foreseeable 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. R. I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-7001. In previous advisory opinions, the Commission has applied a rebuttable presumption that a public official will be financially impacted by official action concerning property that abuts his own. See, e.g., A.O. 2002-16 (opining that the petitioner, a Richmond Planning Board member, a municipal appointed position, may not participate and/or vote on matters involving a proposed multi-use development to which he is an abutting property owner). Applying this presumption, the Commission has frequently stated that a public official may not participate in decisions concerning abutting property absent sufficient evidence that the official action would not affect the financial interests of the public official. Based on the petitioner’s representations, the property at which he resides has not received any abutter’s notification from the town regarding this project. Accordingly, there is no presumption of financial impact. Furthermore, these representations and exhibits all tend to support a lack of financial impact. The petitioner’s additional representations and exhibits reveal that neither his family, business associates, nor he himself have a financial interest in said property or in the development project. Code Citations : 36-14-5(a) 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions : 2005-07 2002-16 Keywords : Property interest