Advisory Opinion No. 2005-66 Re: Byron S. Kee QUESTION PRESENTED: The petitioner, a member of the Town of Warren Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he is permitted to participate in a decision of the Planning Board regarding a housing development that is on property adjacent to property owned by his mother. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Warren Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in a decision of the Planning Board regarding a housing development that is on property adjacent to property owned by his mother. The petitioner is a member of the Town of Warren Planning Board. He represents that a matter concerning a proposed housing development is coming before the Planning Board for decision and voting, and that the proposed development is on property that is adjacent to a large parcel of property owned by his mother. The petitioner states that the proposed development could increase the value of his mother's property. Based on these representations, the petitioner asks whether he can participate in the Planning Board's discussion and voting on issues surrounding the development. Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, direct or indirect, 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). An official will have an interest in substantial conflict with his or her official duties if he or she 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 or her position or confidential information received though his or her position to obtain financial gain, other than that provided by law, for himself or herself or any person within his or her family. The term "family," as used in the Code of Ethics, includes the petitioner's mother. R.I. Gen. Laws § 36-14-2(1). The Commission previously has concluded that the Code of Ethics prohibits public officials from participating in matters that may affect their families, including decisions regarding property. See A.O. 2004-12 (Exeter Zoning Board of Review member may not sit to consider appeal of cease and desist order involving land that abuts property owned by the petitioner's brother-in-law); A.O. 2003-27 (concluding that a Middletown Town Council member could not participate in matters regarding a proposed commercial development given that her brother-in-law was an abutter to the subject property); A.O. 2000-90 (concluding that an Exeter Planning Board candidate could not participate in the Planning Board’s consideration of matters involving a research and technology park given that his mother-in-law was an abutter to the subject property); A.O. 1998-39 (concluding that the Coventry Town Solicitor could not advise the Council regarding parcels that are adjacent to land owned by a corporation in which his brother-in-law has a substantial interest); A.O. 1997-76 (finding a Coventry Planning Commission member could not participate in matters relating to a proposed subdivision given that her brother was an abutter to the subject property). Here, the petitioner is clear in representing that his mother owns property that is adjacent to the land under consideration by the Planning Board, and in stating that the proposed development could cause the value of his mother's land to increase. Applying these representations to the aforementioned provisions of the Code, and consistent with the above-cited advisory opinions, the petitioner is not permitted to participate in matters relating to the proposed development that come before the Planning Board. Notice of recusal should be filed both with the Warren Planning Board and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-2(1) 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions: 2004-12 2003-27 2000-90 99-99 99-34 98-47 98-39 98-26 97-76 Keywords: Family: property interest Recusal