Advisory Opinion No. 2008-7 Rhode Island Ethics Commission Advisory Opinion No. 2008-7 Re: Patricia Sylvester 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 she 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 that she was a general member of the Yacht Club approximately twenty years ago. 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 not 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”), notwithstanding the fact that she was a general member of the Yacht Club approximately twenty years ago. The petitioner represents that she and her husband and children were members of the Tiverton Yacht Club in the 1970’s and early 1980’s, but have not been members for approximately twenty years. The petitioner further states that from 1979-1981 she served as the Social Chairperson for the Yacht Club, and in that capacity for those specific years, she was considered a member of the Board of Directors of the Yacht Club. However, she states that she has no current involvement whatsoever with the Yacht Club, nor any financial interest in the Yacht Club, nor are any members of her family members of the Yacht Club, nor does she do any business with the Yacht Club. 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 she may participate in the Planning Board’s consideration and recommendation to the Town Council on the proposed amendment, given that she was 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.” Also, an official may not participate in a matter concerning or presented by a business associate, unless the agency is advised of the nature of the relationship, and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). The facts in this petitioner’s request are straightforward and simply do not present any relationship or potential financial impact that would implicate the prohibitions embodied in the Code of Ethics. The petitioner’s general membership in the Yacht Club terminated approximately twenty years ago. Even assuming, arguendo, that the petitioner’s past membership in the Yacht Club constituted a business association with the Yacht Club, this Commission has consistently found that no potential for a conflict of interest exists when a prior business relationship between a public official and a private party has ended and there is no ongoing or anticipated future relationship between the parties; in such instances, a public official may participate in matters involving his or her former business associate, assuming no other conflicts are present. See, e.g., A.O. 2004-3; A.O. 98-25; A.O. 97-112. Based on the petitioner's representations, pertinent provisions of the Code of Ethics, and prior advisory opinions, we conclude that the petitioner’s past general membership and service as Social Chairperson in the Tiverton Yacht Club do not require her recusal from participation in matters involving the Yacht Club coming before the Planning Board. Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2004-3 A.O. 98-25 A.O. 97-112 Keywords: Business Association Financial Interest Recusal