Advisory Opinion No. 2007-17 Advisory Opinion No. 2007-17 Re: Rosemary Eva QUESTION PRESENTED: The petitioner, a Tiverton Street Review Committee member and Chair of the Tiverton Planning Board, municipal appointed positions, requests an advisory opinion as to whether she may participate in the Street Review Committee’s findings and recommendations to the Town Council regarding whether to accept Shore Road into the Town’s road system, notwithstanding that she uses a portion of Shore Road to access property that she owns. Assuming the Town accepts Shore Road, she further inquires whether she may sign a plan relating to Shore Road for recordation in land evidence records in her administrative capacity as Chair of the Tiverton Planning Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Tiverton Street Review Committee member and Chair of the Tiverton Planning Board, municipal appointed positions, may not participate and vote in the Street Review Committee’s consideration of whether Shore Road should be accepted into the Town’s road system, given that she utilizes the subject street to access her property. Although the Code of Ethics requires the petitioner’s recusal from the Street Review Committee’s consideration of this matter, as Chair of the Planning Board she may execute documentation ratifying the Town Council’s acceptance of Shore Road into the Town road system as a ministerial administrative task. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest 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. The petitioner is the Chair of the Tiverton Planning Board. She also serves as a member of the Tiverton Street Review Committee, which has been tasked to review the status of paper streets in the Town and report its findings and recommendations to the Town Council as to whether such roads should be accepted into the Town’s road system. The petitioner represents that the Street Review Committee is considering the status of Shore Road, which was platted as an incipient dedication to the Town but has not been accepted as a Town road. According to the Tiverton Assistant Solicitor, in the 17th century a proprietor’s road was created into a public road. In the 1950’s, a street in that area was paved during the development of a subdivision and named Shore Road. Recent surveying suggests that the paved road is not in alignment with the actual public roadway, which exists on paper and is not improved. The petitioner advises that she owns a small parcel of undeveloped property located at 10 Shore Road, situated in the neighboring municipality of Little Compton, Rhode Island. She states that she utilizes the portion of Shore Road located in Tiverton to access her property, which is abutted by the portion of Shore Road located in Little Compton. She represents that Shore Road is the only means of access to her property and that the subject area is largely wetlands. Although the Town of Tiverton has not formally accepted Shore Road as a municipal road, the petitioner represents that the Town does maintain the road. She states that she does not believe that any recommendation to the Tiverton Town Council regarding the status of Shore Road would financially impact her property. Applying these provisions to the facts as presented, the primary issue is whether the petitioner’s property will be financially impacted by the Town’s decision whether or not to accept Shore Road into its road system. If a financial impact, positive or negative, is reasonably foreseeable, then the petitioner is required to recuse from participation and vote on the issue. 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. 2002-20; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90. Applying the presumption, the Commission frequently has stated that a public official may not participate in decisions concerning abutting property absent some evidence that official action would not affect the financial interests of the public official. Here, the petitioner’s property is adjacent to the subject roadway, which provides her only means to access the property. As such, the petitioner may not participate in this matter as a member of the Street Review Committee. Notice of recusal from the Street Committee’s review of the issue must be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Although the Code of Ethics requires the petitioner’s recusal from the Tiverton Street Committee’s consideration of the status of Shore Road, the Commission opines that the petitioner may execute land evidence records relating to Shore Road in her capacity as Chair of the Tiverton Planning Board. The petitioner’s signature on the land evidence records would be in the nature of a ministerial administrative act, ratifying actions taken by the Town Council relative to Shore Road’s status as a municipal road. Code Citations 36-14-5(a) 36-14-5(d) 36-14-6 36-14-6001 36-14-7(a) Related Advisory Opinions : 2006-37 2005-16 2005-7 2003-59 2002-30 2002-20 2002-16 2001-19 2001-4 2000-90 Keywords : Ministerial Activity Property Interest Recusal