Advisory Opinion No. 2006-3 Advisory Opinion No. 2006-3 Re: Glen S. Fontecchio QUESTION PRESENTED: The petitioner, Chairman of the Providence Historic District Commission and a member of the Down City Design Review Commission, both municipal appointed positions, requests an advisory opinion as to whether he may appear before the City of Providence Zoning Board to request a use variance for his residential property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chairman of the Providence Historic District Commission and a member of the Down City Design Review Commission, both municipal appointed positions, may appear before the City of Providence Zoning Board to request a use variance for his residential property. The petitioner is the Chairman of the Providence Historic District Commission (“HDC”). The petitioner informs that by virtue of his position as Chairman of the HDC, he automatically becomes a member of the Down City Design Review Commission (“DRC”). The petitioner advises that the DRC reviews proposals of work to be performed on buildings within the downtown area of Providence. The petitioner informs that the proposals for such work include new construction, demolition and modifications to existing buildings. The petitioner further advises that he was appointed to a task force to review and comment on the provisions of a newly proposed Providence Zoning Ordinance. The petitioner represents that he was one of over fifty (50) other appointees of this task force, which included two (2) members of the Providence Zoning Board (“Zoning Board”). The petitioner represents that the appointees of the task force have no voting authority over the contents of the proposed ordinance. According to the petitioner, once the new Zoning Ordinance is completed, it will be reviewed and voted on by the City Council. Lastly, the petitioner represents that the neither the HDC nor the DRC have jurisdiction over the Zoning Board or his zoning application; however, the Zoning Board does hear appeals from the HDC and the DRC. The petitioner advises that in August of 2005, he submitted an application to the Zoning Board for a use variance for his residential property. The petitioner states that he is seeking to utilize one bay of an existing garage for an architectural studio for his personal use. Additionally, the petitioner informs that he is seeking to construct a small deck on the garage roof. The petitioner represents that he has met with his neighbors that live within a 200’ radius and has secured their signatures of support for his application to the Zoning Board. Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, 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). The petitioner 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 his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. Further, the petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one (1) year after the petitioner has officially severed his position with the agency. Here, the petitioner is neither a member of the Zoning Board nor is he employed by the Zoning Board. The only connection that the HDC and the DRC have with the Zoning Board is that the Zoning Board serves as the appellate body for the each commission. Accordingly, the Commission opines that the petitioner will not be in violation of the Code of Ethics if he appears before the Zoning Board to pursue his application for a use variance. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-7(a)