Advisory Opinion No. 2006-45 Advisory Opinion No. 2006-45 Re: John P. McCoy QUESTION PRESENTED: The petitioner, a member of the Cumberland Zoning Board, a municipal appointed position, and legal advisor to the Cumberland Land Trust, a private non-profit corporation, requests an advisory opinion as to whether he may participate in the Zoning Board’s review of a Planning Board decision which approved a master plan for a land development project, given that the Cumberland Land Trust provided comments to the Planning Board relative to the proposed master plan. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Cumberland Zoning Board, a municipal appointed position, and legal advisor to the Cumberland Land Trust, a private non-profit corporation, may participate in the Zoning Board’s review of a Planning Board decision which approved a master plan for a land development project, notwithstanding that the Cumberland Land Trust provided comments to the Planning Board relative to the proposed master plan. The petitioner informs that he was appointed to the Cumberland Zoning Board (hereinafter “the Zoning Board”) in February of 2005. He informs that the Zoning Board sits as the Board of Appeals for appeals taken from the Planning Board. The petitioner states that from 1994 until January of 2005, he was a member of the Board of Directors for the Cumberland Land Trust (hereinafter “the CLT”). The petitioner advises that the CLT is a private, non-profit charitable organization that is staffed by volunteers. He further advises that although he resigned from his position as a member of the Board of Directors, he serves as legal advisor to the CLT. The petitioner informs that as legal advisor, he provides pro bono legal assistance to the CLT on an “as needed basis” on issues such as property acquisition, existing conservation easements or stewardship issues. The petitioner advises that the Cumberland Subdivision Regulations provide that for all major subdivisions and land development projects, the Planning Department solicits comments to the proposed subdivision plans from various public agencies. Although the regulations do not require it, the petitioner states that as a matter of practice, the Planning Department also solicits comments from the CLT. The petitioner states that comments by the public agencies, including the CLT, are compiled by the Town Planner and then passed on to the Planning Board, which can then give them whatever weight that it deems appropriate. The petitioner represents that he does not participate in either the drafting or review of comments made by the CLT to the Planning Board. The petitioner represents that presently before the Zoning Board is an appeal of a Planning Board decision to approve a master plan for a land development project. The petitioner states that as the Board of Appeals, the Zoning Board must determine, by reviewing the record of the Planning Board, whether or not the Planning Board was correct in approving the master plan. The petitioner represents that (1) the CLT is not a party to the appeal, (2) the CLT does not own any property that abuts the subject project area, and (3) the petitioner had no involvement with the CLT on this matter. The petitioner does represent that the CLT did provide comments to the Planning Board regarding the master plan. Given these representations, the petitioner asks whether he is permitted to participate in the Zoning Board’s review of the Planning Board’s decision to approve the master plan. 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 or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, an employer, a family member or business associate will derive a direct monetary gain or loss by reason of his official activity. R.I. Gen. Laws §36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, family, employer, business associate, or a business that he represents. Here, based upon the petitioner’s representations, there does not appear to be a conflict of interest in that there is no direct financial nexus between his actions as a member of the Zoning Board and his representation of the CLT. The petitioner represents that the CLT has no financial interest as it relates to the proposed master plan. Accordingly, the Commission opines that the petitioner may participate in the Zoning Board’s review of a Planning Board decision which approved a master plan for a land development project, notwithstanding that the CLT provided comments to the Planning Board relative to the proposed master plan. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) Related Advisory Opinions: 99-100 Keywords: Dual Public Roles Recusal