Advisory Opinion No. 2006-37 Advisory Opinion No. 2006-37 Re: Richard A. Poirier QUESTION PRESENTED The petitioner, a member of the Smithfield Town Council, a municipal elected position, requests an advisory opinion as to whether he may attend a meeting of the Smithfield Town Council and provide public comment, as an abutter, regarding a zone change petition filed on behalf of a limited liability company which proposes to construct condominiums on the subject property. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Town Council, a municipal elected position, may attend a meeting of the Smithfield Town Council and, upon recusing from participation as a member of the Town Council, provide public comment as an abutter regarding a zone change petition filed on behalf of a limited liability company which proposes to construct condominiums on the subject property. The petitioner represents that he is an abutting landowner to property which is the subject of zone change petition filed on behalf of Stillwater Pond Associates, LLC, which proposes to construct condominiums on the subject property. The petitioner advises that the condominium proposal will affect his property as well as the area in general and he would like to present his views to the Town Council. The petitioner represents that he will recuse himself from the matter but seeks guidance from the Commission as to whether he may provide public testimony regarding this petitioner at the Town Council hearing. 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 he 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 position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself or any person within his family. In past opinions, the Commission has applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See A.O. 2002-20; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90. Applying the presumption, the Commission frequently has stated that a public official may not participate in decisions concerning abutting property absent some evidence that official action would not affect the financial interests of the public official. Therefore, the petitioner should not participate in this matter as a member of the Town Council and should recuse in accordance with R.I. Gen. Laws § 36-14-6. In addition to the prohibitions of Code sections (a) and (d) discussed above, a public official may not represent himself or any other person before the agency of which he is a member or by which he is employed. See R.I. Gen. Laws § § 36-14-5(e)(1) and (2). Accordingly, a Town Council member is generally prohibited from representing himself in a matter pending before the Town Council. However, Commission Regulation 7003, sometimes called the “public forum exception” provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child. Here, the petitioner wishes to appear before the Town Council to provide public comment regarding a change in zoning for land that abuts his property. In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2005-16 (opining a member of the Narragansett Town Council may, upon recusal, attend and provide public comment at meetings of the Town Council regarding a change of zone request where he is an abutter); A.O. 2003-15 (advising that a member of the Scituate Town Council may, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he is an abutter provided that he does not receive special access or priority not available to any other member of the public); A.O. 2002-65 (advising that a member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public). Consistent with these prior opinions, it is the opinion of the Commission that the petitioner may address the Town Council regarding the zone change petitioner for abutting land as long as he does not receive access or priority not available to any member of the public. We further caution the petitioner that he may not in any way use his position to influence members of the Town Council. See R.I. Gen. Laws 36-14-5(d). Finally, as previously stated, the petitioner must recuse from participation and voting on this matter in accordance with R.I. Gen. Laws § 36-14-6. Notice of recusal must be filed with the Smithfield Town Council and the Rhode Island Ethics Commission. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) 36-14-7003 Related Advisory Opinions : 2003-15 2002-65 2002-20 Keywords : Public Forum Exception Property Interest