Advisory Opinion No. 2008-4 Rhode Island Ethics Commission Advisory Opinion No. 2008-4 Re: Peter Corr QUESTION PRESENTED: The petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, requests an advisory opinion as to whether he is prohibited from participating in a review of proposed amendments to the Tiverton Zoning Ordinance (“the Zoning Ordinance”) as requested by the Tiverton Yacht Club (“the Yacht Club”), given his relationship with the Yacht Club. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, is prohibited from participating in the Planning Board’s review of a proposed amendment to the Tiverton Zoning Ordinance (“the Zoning Ordinance”), as requested by the Tiverton Yacht Club (“the Yacht Club”), based on his representation that he is a shareholder in the Yacht Club. The petitioner represents that he has been a general member of the Tiverton Yacht Club since sometime in the 1960’s, and a member of the Planning Board for approximately fifteen years. The petitioner states that his parents were founding members of the Yacht Club, and as such, were initial shareholders in the Club. He states that both of his parents passed away some years ago, but that he is not certain what actually happened to their shares of stock. He further states that he presumes that he and a sibling have in fact inherited the shares, but states that any shares held by him have no par value and will only realize an actual monetary value if the Yacht Club is sold. Nonetheless, the petitioner concedes that to the best of his information and belief, while uncertain as to the actual extent or value of his holdings, he is in fact a shareholder. The Yacht Club is a small organization, of which the maximum membership is kept to 200 families, although at this time, the membership includes approximately 155 families. The Yacht Club offers family-oriented activities, including Red Cross certified swimming lessons, sailing lessons for children and teens, and other general family-oriented social gatherings. The Yacht Club also runs a small marina, which is located across the street from the Yacht Club’s main facility, which includes about 20 slips for mooring boats. Many families who are members of the Yacht Club do not themselves own boats, but rather, obtain memberships solely for the social gatherings and family centered activities offered by the Yacht Club. The former building located on Riverside Drive in Tiverton, which housed the activities and operations of the Yacht Club since the 1950s, burned down in a fire in 2003. In the aftermath of the fire, in its attempts to rebuild on the same site, the Yacht Club has been a party to a protracted legal dispute with abutting property owners. Most recently, the Superior Court issued an order, nullifying a building permit which the town had issued to the Yacht Club in 2006, allowing the Yacht Club to build a new clubhouse on the site of the prior one. Most pertinent to this petitioner’s request is a recent submission by the Yacht Club to the Tiverton Town Council (“the Town Council”), requesting an amendment to the Zoning Ordinance, which the Town Council has since referred to the Planning Board, asking for its recommendation. Previously, the Yacht Club was permitted to run its operations out of the Riverside Drive location, which is an area zoned as R-40 (residential), under a non-conforming special use allowance. The Yacht Club has submitted a request to the Town Council for an amendment to the zoning ordinance which would make the club a permitted use, rather than a non-conforming one. The Town Council has in turn passed the matter on to the Planning Board for a recommendation. As such, the petitioner requests an advisory as to whether he may participate in the Planning Board’s consideration and recommendation to the Town Council on the proposed amendment, given that he is a general member of the Yacht Club. Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a). The petitioner will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she represents. See R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” At issue in this instance is the Planning Board’s recommendation to the Town Council on the Yacht Club’s request for a change to the Zoning Ordinance in regard to the residential zone in which the Yacht Club property is located. In this instance, it is reasonably foreseeable that this action will impact the Yacht Club’s ability to rebuild its clubhouse and the extent to which any potential building reconstruction will differ in dimension from the previous clubhouse building, which was lost in a fire in 2003. It is further reasonably foreseeable that the resulting effect on the property value, whether the Yacht Club rebuilds its clubhouse or not, will have a direct impact on the value of this petitioner’s shareholdings, whatever they might be. While the petitioner stresses that such financial impact is not significant and is inconsequential, a financial impact nonetheless exists, triggering section 5(a) and 7(a) of the Code of Ethics. The Code of Ethics does not require that such financial impact be material or significant, but rather, provides only that there be a direct financial impact. See A.O. 2005-62 (opining that a financial impact need not be material or significant to trigger section 5(a) and 7(a) of the Code of Ethics, and as such, a Hopkinton Planning Board member was prohibited from participating in and voting on an application before that Planning Board, given that the applicant was the petitioner’s business associate and would be financially impacted by the potential loss of a $1,000.00 earnest money deposit). Accordingly, the Code of Ethics prohibits the petitioner from participating in and voting on the Planning Board’s recommendation to the Town Council in regard to the Yacht Club’s request for a change to the Zoning Ordinance, given that it is reasonably foreseeable that the petitioner will be financially impacted by the Planning Board’s consideration of this matter. Notice of recusal must be filed with the Planning Board and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: § 36-14-5(a) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2005-62 Keywords: Financial Interest Recusal