Advisory Opinion No. 2006-52 Advisory Opinion No. 2006-52 Re: Barbara B. Michel QUESTION PRESENTED: The petitioner, a trustee of the Block Island Land Trust, a municipal elected position, requests an advisory opinion as to whether she may participate in discussions and voting relative to agreements and litigation concerning property that abuts real estate owned by her family members. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a trustee of the Block Island Land Trust, a municipal elected position, may not participate in discussions and voting relative to agreements and litigation concerning property that abuts real estate owned by her family members. The petitioner is a trustee of the Block Island Land Trust ("the Land Trust"). She represents that the Land Trust, established through legislation in 1986, is a public body administered by five elected trustees with the power to acquire and manage real estate in the Town of New Shoreham for open space, public recreational, agricultural and littoral protection purposes. The petitioner states that in 1986 the Rhode Island Department of Environmental Management ("RIDEM") acquired a 115 acre parcel of land in the southern part of New Shoreham along Black Rock Road ("the Black Rock property"). She further asserts that at the time of this acquisition, the Town and the State entered into a Mutual Conservation Restriction and Right of Way Easement over a 33 acre portion of the Black Rock property. The petitioner represents that in 2005 the Land Trust and another entity, The Nature Conservancy, acquired fee and easement interests in real estate that abuts the southern and western borders of the Black Rock property. This real estate had previously been owned by Graham O. Jones and Gay V. Jones ("the Joneses"), and will henceforth be referred to as "the Jones property." The petitioner states that the Land Trust has expended approximately $1,000,000 and may expend another $2,500,000 toward acquiring easement interests in the Jones property. The petitioner asserts that at the time of acquiring the easement interests in the Jones property, a Memorandum of Understanding was entered into between the Joneses, The Nature Conservancy, the Town and the RIDEM. Notably, the Land Trust is not a party to the document. This Memorandum of Understanding was, according to the petitioner, in the nature of a comprehensive use and management plan for the Jones property as well as for the abutting Black Rock property and other land held by The Nature Conservancy. In 2006, a citizen of New Shoreham filed suit against the Town, the Town Manager, RIDEM and the Nature Conservancy contesting the validity of the 2005 Memorandum of Understanding. The petitioner states that she believes that the judge in the case has instructed the plaintiff to add the Joneses as a necessary party defendant. The petitioner informs that the Land Trust has determined that its substantial financial stake in the Jones property dictates that it should seek to participate in the interpretation and enforcement of the Memorandum of Understanding that sets out the uses and management of the Jones and Black Rock properties. For these same reasons, the Land Trust may also seek to participate in the disposition of the lawsuit. It is anticipated that the Land Trust will engage in discussions and voting on matters concerning both the lawsuit and the Memorandum of Understanding. The petitioner seeks advice concerning a potential conflict created by reason of real estate owned by the petitioner and her family in the vicinity of the Black Rock property. The petitioner owns two contiguous parcels of real estate in the southern part of New Shoreham that is more than 500 feet north of the Black Rock property and considerably farther from the Jones property. However, the petitioner informs that her property is connected to the Black Rock property by a large undeveloped parcel of land owned by the petitioner's aunts, uncles and cousins ("the family property"). The southern border of the family property abuts the Black Rock property and its northern border abuts the petitioner's two lots. Although the petitioner has no present legal interest in the family property, she states that she and her spouse "have realistic reasonably present hopes" to acquire it.[1] Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 her official duties if it is reasonably foreseeable 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. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Section 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, business associate or any person within her family. These provisions of the Code prohibit the petitioner from participating in any Land Trust matters, including discussions and voting, that are likely to result in a financial impact to herself or her family members. The petitioner's aunts, uncles and first cousins are considered to be "family members" under the Code. See A.O. 97-49 (uncles and first cousins are "family members" under the Code). Compare A.O. 2001-41 (third cousin not considered "family member" under the Code of Ethics, and Zoning Board member may participate in third cousin's application). 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. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99; A.O. 98-92; A.O. 98-66; A.O. 98-56; A.O. 98-35; A.O. 98-19; A.O. 97-76; A.O. 97-63. Given this presumption, the Commission frequently has stated that a public official may not participate in decisions concerning such property absent some evidence that the official action would not financially affect the abutting property connected to the public official. See A.O. 2005-7; A.O. 2003-13; A.O. 2002-30. As previously discussed, the Black Rock property abuts a large parcel of land that is owned by the petitioner's family members. The petitioner states that the Land Trust will engage in discussions and voting on matters (the Memorandum of Understanding and the pending litigation) that could influence the management of the Black Rock property. Applying the petitioner's representations to the aforementioned Code provisions, we presume that the family property will be financially impacted by Land Trust actions that influence the management and use of the abutting Black Rock property. Accordingly, the petitioner must recuse from participation in any Land Trust discussions and votes that are likely to influence the management and use of the Black Rock property. Based on the petitioner's representations, we opine that issues involving the Memorandum of Understanding and the litigation would be among the matters requiring recusal. Notice of recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-6001 Related Advisory Opinions: 2005-7 2003-13 2002-30 2002-16 2001-41 2001-19 2001-4 2000-90 99-148 99-99 98-92 98-66 98-56 98-35 98-19 97-76 97-49 96-63 Keywords: Property interest Family member 1] In her letter seeking an advisory opinion, the petitioner also raises a second potential conflict involving the petitioner's husband's business association with the Joneses, who maintain an ownership interest in the Jones property and are signatories to the Memorandum of Understanding, and who are likely to be named as party defendants in the lawsuit. Because we are of the opinion that the first potential conflict discussed already requires the petitioner's recusal, we need not consider this second potential conflict.