Advisory Opinion No. 2006-49 Advisory Opinion No. 2006-49 Re: Michael T. Beauparlant QUESTION PRESENTED: The petitioner, a member of the Zoning Board of the City of East Providence, a municipal appointed position, requests an advisory opinion regarding whether he may participate in the Zoning Board's consideration of an appeal from the Planning Board given that his spouse's uncle is an abutter to the property that is the subject of the appeal. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Zoning Board of the City of East Providence, a municipal appointed position, may not participate in the Zoning Board's consideration of an appeal from the Planning Board given that his spouse's uncle is an abutter to the property that is the subject of the appeal. The petitioner is a member of the Zoning Board of the City of East Providence ("Zoning Board"). He states that there is presently before the Zoning Board an appeal from a decision of the Planning Board relating to property located on Lynn Avenue and Vinland Avenue. The petitioner represents that his wife's uncle owns property that abuts the property that is the subject of the appeal. Given these representations, the petitioner asks whether he can participate in the Zoning Board's consideration of this appeal. Under the Code of Ethics, a public official may not participate in a matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he or a member of his family, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). A public official has reason to believe or expect that such a conflict of interest exists when it is "reasonably foreseeable." Commission Regulation 36-14-7001. The probability of a conflict must be greater than "conceivably," but it need not be certain to occur. Id. Similarly, pursuant section 5(d) of the Code of Ethics, a public official is prohibited from using his public position or confidential information received through his position to obtain financial gain for himself or a family member, among others. See R.I. Gen. Laws § 36-14-5(d). Pursuant to R.I. Gen. Laws § 36-14-2(1) and Regulation 36-14-5005, the petitioner's spouse's uncle, although not related by blood, is nevertheless considered to be a member of his family for purposes of applying the Code of Ethics. See A.O. 2003-12 (East Greenwich Town Council member may not participate in consideration of zoning matter involving development for which petitioner's brother-in-law served as advisor and intends to seek its real estate listing); A.O. 92-20 (Town Council member must recuse where license applicant is within close proximity of business owned by the member's brother-in-law). Here, the petitioner's spouse's uncle, a family member, owns property that abuts the subject matter of the Zoning Board appeal. 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. With no representations from the petitioner tending to rebut this presumption, the Commission presumes that the petitioner's spouse's uncle will be financially impacted by the Zoning Board's decision. Accordingly, the petitioner is required to recuse from participation in this matter as a member of the Zoning Board. Notice of recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-2(1) 36-14-5(a) 36-14-5(d) 36-14-5005 36-14-6 36-14-7(a) 36-14-7001 Related Advisory Opinions : 2003-15 2003-12 2002-65 2002-30 2002-20 2002-16 2001-19 Keywords : Family Member Property Interest