Advisory Opinion No. 2005-59 Re: Thomas W. Breckel QUESTION PRESENTED: The petitioner, a member of the Town of Johnston Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate and/or vote on matters that affect the Stonehill Marketplace project, given that he is affiliated with two businesses located within the Town of Johnston. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Johnston Planning Board, a municipal appointed position, may participate in the Planning Board’s consideration of matters involving the Stonehill Marketplace project, notwithstanding the petitioner’s private business interests represented herein. The petitioner advises that he was appointed to the Town of Johnston Planning Board (“Planning Board”) in July of 2003. He informs that the Planning Board has been reviewing a development entitled, “Stonehill Marketplace” (“the Stonehill project” or “project”), located off Atwood Avenue in Johnston. The petitioner states that since November of 2004, the Planning Board has been meeting monthly to review the Master Plan for this project. He informs that the most recent submission for the Stonehill project involved the Planning Board’s review of a proposed Wal-Mart, Sam’s Club, Multi-Screen Theater, several restaurants, and other retail stores. The petitioner represents that the Planning Board’s responsibilities for this review involve private roadway construction, traffic issues, installation of improvements such as water, sewer, fire protection, parking areas, building placement, landscaping, curbing, and signalization. The petitioner informs that the site plan anticipates gas tanks being installed adjacent to the future Sam’s Club. Finally, the petitioner advises that pursuant to the Johnston Zoning Ordinance, any request for Special Use Permits for variances relating to dimensional modifications, signage, drive-thru windows for restaurants and banks, nightclubs, theater, and gas stations and gas pumps, are reviewed by the Johnston Zoning Board of Review (“Zoning Board”), not the Planning Board. The petitioner advises that his spouse’s family owns East Side Entrepreneurs, LLC and Colbea Enterprises, LLC. The businesses own gas stations throughout Rhode Island, two of which are located in the Town of Johnston. The petitioner advises that he serves as Vice President of Operations for both businesses. The petitioner represents that the gas stations are located on different streets than where the Stonehill project is located and each are approximately two miles away from the project. The petitioner represents that he does not believe that the gas stations will be financially impacted one way or another by the anticipated installation of gas tanks near Sam’s Club. The petitioner states that at the Planning Board meeting held on June 7, 2005, a citizen questioned whether or not the petitioner could vote on the Master Plan for the Stonehill project due to his affiliation with the gas stations located in the Town. At said meeting, the petitioner represents that he sought the advice of the Planning Board Administrative Officer, who then consulted with the Town Solicitor, and they both agreed that since the Zoning Board had the legal authority to approve the gas tanks, pursuant to the Zoning Ordinance, there did not appear to be a conflict of interest if the petitioner were to participate in the Planning Board vote on the entire Master Plan. The petitioner advises that he did in fact vote on the Master Plan for the project but is now seeking guidance from the Ethics Commission with regard to future participation and/or voting on the Stonehill project. 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). 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 reason of his official 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 36-14-6001. Furthermore, a public official may not use his or her public office to obtain financial gain, other than that provided by law, for himself or for any business associate. R.I. Gen. Laws § 36-14-5(d). Applying these provisions of the Code to the facts as represented, it is clear that the petitioner is a business associate of East Side Entrepreneurs, LLC and Colbea Enterprises, LLC. The Code defines “business associate” as a “person joined together with another person to achieve a common financial objective[.]” R.I. Gen. Laws § 36-14-2(3). The term “person” is defined in the Code as “an individual or business entity[.]” R.I. Gen. Laws § 36-14-2(7). Accordingly a determination must be made as to whether the petitioner's official action will result in a direct financial gain to such business associates. The petitioner represents that the Zoning Board alone has the legal authority to grant a Special Use Permit for the gas tanks which are to be installed adjacent to the future Sam’s Club. The petitioner also represents that the businesses which he is affiliated with are not related in any way with the proposed gas tanks in the Stonehill project. Moreover, the petitioner advises that the gas stations are not in close proximity to the project site and would not be considered a competitor of the petitioner. In past advisory opinions, the Commission has required a public official to recuse himself from participation and/or vote on any matter in which he has a business or financial interest, or which involves the financial interests of a direct competitor. The Commission has advised members of town and city councils with interests in restaurants/liquor establishments that the law did not prohibit them from serving on the town or city council and, generally, from considering matters relating to the zoning or licensing of restaurants and bars. The Commission further has advised, however, that when an issue came before the council involving a competing business that was in reasonably close proximity to the official’s own, or that otherwise directly impacted the business in which the official had an economic interest, recusal was required in accordance with R.I. Gen. Laws § 36-14-6. Here, the gas stations at issue are located approximately two miles from where the proposed gas tanks would be located. Moreover, while the gas stations are located within the Town of Johnston, they are located on completely different streets. According to the petitioner’s representations, the businesses are not in close proximity to each other and it appears that they would not be in direct competition to the gas tanks located at the future Sam’s Club. It is not reasonably foreseeable that either business would have a direct financial impact on the other. Furthermore, the petitioner’s board is not determining the issue of whether the new gas tanks should be permitted. According to the petitioner, that decision will be made by the Zoning Board. For all of these reasons, it is the opinion of the Ethics Commission that the petitioner may participate in the Johnston Planning Board’s discussions and voting on general issues surrounding the Stonehill project. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-7(a) Related Advisory Opinions: 2002-23 2001-57 2000-62 99-122 Keywords: Business interest Competitor(s) Recusal