Advisory Opinion No. 2006-48 Advisory Opinion No. 2006-48 Re: Curtis R. Ponder QUESTION PRESENTED: The petitioner, a member of the Cranston Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding his ability to participate in the Zoning Board’s consideration of an appeal involving the issuance of a building permit, given that petitioner’s employer owns and uses property that directly abuts the subject property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Cranston Zoning Board of Review, a municipal appointed position, may not participate in the Zoning Board’s consideration of an appeal involving the issuance of a building permit, given that petitioner’s employer owns and uses property that directly abuts the subject property. The petitioner advises that he is a member of the Cranston Zoning Board of Review (hereinafter “the Zoning Board”). He advises that before the Zoning Board is an appeal of a building permit which was issued to Karleetor, LLC (hereinafter “Karleetor”) for the operation of a concrete batching facility to be operated by Cullion Concrete Corporation on the Karleetor property. The petitioner informs that he has been employed by North-Eastern Tree Recycling, Inc. (hereinafter “North-Eastern”) for approximately four months as the Operations Sales Manager. The petitioner represents that a principal of North-Eastern, Michael S. Sepe, is part-owner of property which directly abuts the Karleetor property. The petitioner advises that North-Eastern uses this abutting property to store cut trees, mulch and tree material. He further informs that activities on the Karleetor property cross over part of the property owned by Sepe and used by North-Eastern pursuant to a longstanding right of way or easement. Given these representations, the petitioner seeks guidance from the Commission as to whether he may participate in the Zoning Board’s consideration of an appeal involving the issuance of the building permit to Karleetor. Under the Code of Ethics, a public official 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 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 business associate, or any business by which the person is employed or which the person represents. Finally, when an official’s employer or the interests of the official’s employer appear before his agency, the official is required to recuse from participation in the matter. Commission Regulation 36-14-5002(3). These provisions of the Code of Ethics prohibit the petitioner from participating in Zoning Board decisions which are likely to financially impact his employer. See A.O. 2006-23 (opining that a member of the Coventry Planning Commission is required to recuse from any matter involving his employer or the interests of his employer). Here, the petitioner represents that the Karleetor property abuts and has an easement over land that the petitioner’s employer uses as part of its business. The petitioner further represents that this abutting land is owned by a principal of his employer, who also happens to be petitioner’s supervisor. 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. 2002-30; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4. Given this presumption, and the petitioner’s representations, it is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Cranston Zoning Board of Review, a municipal appointed position, may not participate in or vote on the appeal involving the issuance of a building permit to Karleetor since it is reasonably foreseeable that his employer, who owns property which directly abuts the subject property, may derive a direct financial gain or suffer a direct financial loss as a result of the Zoning Board’s decision on the matter. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. This opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. This Commission offers no opinion on the effect which any other statute, ordinance, constitutional or charter provision or canons of professional ethics may have on your situation. Under the Code of Ethics advisory opinions are based on the representations made by, or on behalf of, an official and are not adversary, or investigative proceedings. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5002 36-14-6 36-14-7(a) Related Advisory Opinions: 2006-23 2004-12 2000-39