Advisory Opinion No. 2007-4 Advisory Opinion No. 2007-4 Re: Russell J. Mello QUESTION PRESENTED: The petitioner, a Warren Planning Board member, a municipal appointed position, requests an advisory opinion regarding his ability to participate and vote in the Planning Board’s consideration of the Tourister Mill Development Project, given that he holds the position of Secretary in the Over the Hill Motorcycle Club, which is located approximately 200 feet from the proposed project site. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a Warren Planning Board member, a municipal appointed position, from participating and voting in the Planning Board’s consideration of the Tourister Mill Development Project, given that the petitioner’s business association with the Over the Hill Motorcycle Club, which is located approximately 200 feet from the proposed project site. The petitioner is a member of the Warren Planning Board. He informs that he has been a member of the Over the Hill Motorcycle Club, located in Warren, Rhode Island, since 1995. He states that he had $200.00 in out of pocket expenses to the Club at the time of his membership. In the event that he should decide to leave the Club, or is no longer an active member, he advises that said amount would be returned to him, minus any monies he owed to the Club. In the event that the Club disbands, he indicates that each current, active member would receive a share of the profits after the Club sells its building and assets. Presently, the petitioner holds the position of Secretary of the Club. The petitioner informs that the Warren Planning Board will be considering the Tourister Mill Development Project, a proposal to redevelop the former site of the American Tourister property. He represents that the Club’s building is located approximately 200 feet from the project site. He inquires whether he may participate in the Planning Board’s consideration of the matter, given his position as an officer in the Club. He further inquires whether he would be able to participate in the event that he no longer holds an officer position after the Club holds its annual elections in March. 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 it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of his official 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). The probability of a conflict must be greater than “conceivably,” but it need not be certain to occur. Commission Regulation 36-14-7001. Section 36-14-5(d) of the Code further prohibits an official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or any person within his family. A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Pursuant to R.I. Gen. Laws § 36-14-5(f), no business associate of a public official shall represent himself or any other person before the state or municipal agency of which the official is a member or by which he is employed unless he first advises the agency of the nature of his relationship with the official and the official recuses from participating in the agency’s consideration and disposition of the matter. The Commission has previously opined that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required the official to recuse himself if the interests of the organization would be affected by an action to be taken by his public agency. See A.O. 2002-4. In past advisory 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. 2000-73 (opining that a Jamestown Planning Commission member may not participate in a zoning ordinance revision regarding offsite parking given that his business associate may be financially impacted by the ordinance). See also A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90. Applying the presumption, it is reasonably foreseeable, if not likely, that the proposed redevelopment of the former American Tourister property would financially impact the Over the Hill Motorcycle Club, the petitioner’s business associate, which is situated in close proximity to the project site. Accordingly, the petitioner must recuse from participating and voting in the Planning Board’s consideration of the Tourister Mill Development project. See R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 7(a). Additionally, R.I. Gen. Laws § 36-14-5(f) and Commission Regulation 5002(2) would require the petitioner to recuse himself in the event that the Club or its interests appear before his public body. Finally, the petitioner also seeks guidance as to whether he would be prohibited from participating in Planning Board matters involving the Tourister Mill Development project in the event that he no longer holds an officer position in the Club. Here, the petitioner specifically represents that he has an equity interest in the Club and would receive a share of any profits distributed after the sale of the Club building and assets. Based upon said representation, the petitioner’s business association with the Club exists independently of any executive position he may hold in the organization and, therefore, requires his recusal on matters that would financially impact the Club. Notice of recusal must be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7001 Related Advisory Opinions : 2006-44 2006-27 2005-5 2004-1 2002-16 2002-6 2002-4 2001-72 2001-19 2001-4 2000-90 2000-73 Keywords : Business Associate Membership Property Interest