Advisory Opinion No. 2008-9 Rhode Island Ethics Commission Advisory Opinion No. 2008-9 Re: Town of Smithfield Zoning Board of Review (Joseph A. Abbate-Town Solicitor) QUESTION PRESENTED: The Town of Smithfield Zoning Board of Review (“the Zoning Board”), by and through Joseph A. Abbate, the Smithfield Town Solicitor, requests an advisory opinion regarding whether the Zoning Board may hear and decide an appeal from a decision of the Planning Board pursuant to the Rule of Necessity, given that conflicts of interest prevent the Zoning Board from achieving a necessary quorum of five (5) active members. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Town of Smithfield Zoning Board of Review may utilize the Rule of Necessity, subject to the procedures outlined below, to achieve a quorum of five (5) active members to hear and decide an appeal from a decision of the Planning Board, given that three (3) of the seven (7) Zoning Board members have conflicts of interest requiring their recusals. The Town Solicitor for the Town of Smithfield, writing on behalf of the Town's Zoning Board, represents that pursuant to state law the Zoning Board sits as the Board of Appeals in matters in which aggrieved parties appeal from decisions of the Planning Board. See R.I. Gen. Laws § 42-24-57(1)(i). Rhode Island law further requires that the Zoning Board consists of five (5) regular members and two (2) alternates, for a total of seven (7) members. See R.I. Gen. Laws § 42-24-56(b). The Town Solicitor states that the Smithfield Planning Board has approved an application for a master plan submitted by Keegan LLC (“Keegan”), that includes a subdivision of land into approximately twelve, two-acre lots. That approval has been properly appealed to the Zoning Board ("the Keegan appeal"). However, three (3) of the seven (7) Zoning Board members have actual or apparent conflicts of interest under the Code of Ethics, as previously determined by the Ethics Commission, and are therefore required to recuse from participation and voting on the Keegan appeal. At a meeting of the Ethics Commission on December 4, 2007, the Commission considered advisory opinion requests from these three members of the Zoning Board. In A.O. 2007-55 the Commission determined that Zoning Board member George D. McKinnon was required to recuse from the Keegan appeal due to his status as both an abutting landowner to the subdivision and as a party to the Keegan appeal itself. In A.O. 2007-54, the Commission opined that Zoning Board member Gordon G. Stroupe would be required to recuse from the Keegan appeal given that he had an ongoing attorney-client relationship, unrelated to the Keegan appeal, with the attorney representing the Keegan appellants. Also at the Commission meeting on December 4, 2007, the Commission considered an advisory opinion request from Zoning Board member John Kovolski. Mr. Kovolski asked whether he could participate in the Keegan appeal given that Keegan had applied to the Dexter Credit Union, of which Mr. Kovolski is a member of the Board of Directors, for financing. The draft advisory opinion prepared by the Commission staff recommended that Mr. Kovolski was not required to recuse from the appeal because (1) he would not personally benefit from a financing relationship between the credit union and Keegan; (2) he was not a business associate of Keegan, and (3) the mere fact of a possible business association between the credit union and Keegan was too remote to trigger the conflict of interest provisions of the Code. Notwithstanding the staff’s recommendation, the Commission was uncomfortable with Mr. Kovolski’s participation in the Keegan appeal given his fiduciary duties to the credit union, which stood to be financially impacted by the potential financing of the Keegan subdivision. By a vote of 5-1, the Commission rejected the draft opinion and removed the safe harbor it had provided to Mr. Kovolski. Implicit in this action is the Commission's opinion that it would be a prohibited conflict of interest for Mr. Kovolski to participate and vote on the Keegan appeal. The Town Solicitor for the Zoning Board notes that with three (3) members recusing from the Keegan appeal, there remain only four (4) active members permitted to participate. That is problematic given that the Rhode Island General Laws require that "five (5) active members" of the Zoning Board be present to conduct the hearing. See R.I. Gen. Laws § 45-24-57(2)(i). Section 45-24-57, entitled “Administration – Powers and duties of zoning board of review,” reads in relevant part: Five (5) active members are necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or herself, shall not sit as an active member, and shall take no part in the conduct of the hearing. Only five (5) active members are entitled to vote on any issue[.] R.I. Gen. Laws § 45-24-57(2)(i). This intersection between the conflict of interest provisions of the Code of Ethics and the jurisdictional requirements of Rhode Island’s zoning laws precipitates the instant request for the Commission to consider applying the Rule of Necessity to allow one conflicted member of the Zoning Board to participate in the Keegan appeal. This Commission has recognized a “Rule of Necessity” exception in situations where recusals would inhibit necessary governmental processes, such as where the majority of a public body’s members must recuse themselves and a resulting failure of a quorum renders the entity unable to act. Indeed, the Commission has previously considered and applied the Rule of Necessity to proceedings before the Smithfield Zoning Board of Review. In A.O. 92-1, the Commission opined that three (3) of the seven (7) members of the Zoning Board should recuse from participation in the Smithfield Elks Lodge application for a variance to expand a non-conforming use on its property. Given the legal requirement that there be participation by five (5) active members, the Commission authorized one of the conflicted members to participate. However, that member was instructed that prior to his participation and voting, he should make a public disclosure of his relationship with the Elks Lodge and the basis upon which he feels he can objectively participate and vote. Other instances in which the Commission has authorized the use of the Rule of Necessity include the following: A.O. 98-43 (Rule of Necessity may be utilized by East Greenwich Town Council to obtain quorum on issue of subdivision of American Legion property, where two Council members must recuse based upon American Legion membership); A.O. 96-65 (where majority of members of the Workers' Compensation Court Medical Advisory Board must recuse from consideration of a preferred provider network, Rule of Necessity may be utilized to establish a quorum); A.O. 93-31 (Richmond Town Council may utilize Rule of Necessity to vote on acceptance of public streets in Valley Lodge Estates, where three of the five Council members own real estate in the area). In the instant case, as in A.O. 92-1, the legal requirement of participation by “five (5) active members” of the Zoning Board, when considered in light of the Ethics Commission’s prior determinations that three (3) of the seven (7) Zoning Board members have conflicts of interest that require recusal, supports the application of the Rule of Necessity. The procedure for oper application of the rule is as follows: [1] The four (4) Zoning Board members who have not asserted a conflict are required to participate. Zoning Board member George D. McKinnon, who is a party appellant to the Keegan appeal and has a direct financial interest in its outcome, shall remain disqualified and continue to recuse. The conflicts of interest of Gordon G. Stroupe and John Kovolski are less direct than that of McKinnon, and are also somewhat similar in nature, in that neither Stroupe nor Kovolski stand to be personally financially impacted by the Zoning Board's decision. Rather, these two individuals' conflicts of interest stem from business associations in which their business associates may be financially impacted by the Zoning Board's actions. Accordingly, the names of Zoning Board members Gordon G. Stroupe and John Kovolski shall be written on similar pieces of paper and placed into similar envelopes, which shall then be placed into a box or other container. One envelope shall be chosen by lot. The member whose name is drawn shall thereafter, pursuant to the Rule of Necessity, participate in the Keegan appeal, and prior to such participation shall file a conflict of interest statement disclosing his interest in the matter, and affirming that despite this interest he is willing and able to participate fairly, objectively and in the public interest. See R.I. Gen. Laws § 36-14-6. The member whose name was not drawn shall continue to recuse from participation and voting on the matter. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Other Relevant Authority: R.I. Const., art. III, sec. 7 45-24-57 Poirier v. Martineau, 87 R.I. 60, 138 A.2d 331 (1958) Related Advisory Opinions: 2003-61 99-96 98-43 97-128 96-65 95-52 93-31 92-1 Keywords: Recusal Rule of Necessity [1] The Commission has previously addressed whether or not the petitioner may participate in general matters involving Class B alcoholic beverage licenses. See A.O. 2004-38. [2] The petitioner advises that the package store operated by Councilor Balser’s corporation sells alcoholic beverages to the public as does another package store which is in close proximity to Councilor Balser’s store.