Advisory Opinion No. 2008-41 Rhode Island Ethics Commission Advisory Opinion No. 2008-41 Re: Wallace F. Lees QUESTION PRESENTED: The petitioner, a member of the Burrillville Town Council (“Town Council”), a municipal elected position, requests an advisory opinion as to whether he is prohibited from participating in the discussion and voting regarding a proposed ordinance before the Town Council to create a Dam Management District (“DMD”) that would allow the DMD to take title to the lakebed of the Pascoag Reservoir, given that the petitioner owns property at 440 Camp Dixie Road in Pascoag, which is waterfront property that directly abuts the Pascoag Reservoir. RESPONSE: It is the opinion of the Ethics Commission that the petitioner, a member of the Burrillville Town Council (“Town Council”), a municipal elected position, is prohibited from participating in the discussion and voting regarding a ordinance before the Town Council to create a Dam Management District (“DMD”) that would allow the DMD to take title to the lakebed of the Pascoag Reservoir, given that the petitioner owns property at 440 Camp Dixie Road in Pascoag, which is waterfront property that directly abuts the Pascoag Reservoir. The petitioner is a member of the Burrillville Town Council. He states that the Town Council will soon be considering an ordinance that would allow for the creation of a Dam Management District, pursuant to R.I. Gen. Laws § 45-62-3, which provides in pertinent part that “[t]he council of any city or town is authorized and empowered to establish by ordinance one or more dam management districts within the city or town; if the need for the management of a dam or dams is multi-municipal, a multi-municipal dam management district may be established by the concurrent adoption of an ordinance by the city or town councils of the municipalities in which the dam management district will be located.” The General Laws further provide that DMDs “shall be bodies corporate and politic, having an existence separate and apart from the town or city and from the state, for the purpose of managing dams and providing for dam safety within the boundaries of the district.” R.I. Gen. Laws § 45-62-2. Additionally, the petitioner is the owner and inhabitant of property and a residence located at 440 Camp Dixie Road, Pascoag, Rhode Island, that he represents is waterfront property that directly abuts the Pascoag Reservoir, which is the subject of the proposed DMD ordinance. The petitioner concedes that the proposed ordinance would allow the DMD to assess management fees against properties which have access to the lake, including his own, and that the establishment of the DMD would likely have a financial impact upon his property value. The petitioner states that he has recused from all matters pertaining to this issue coming before the Town Council thus far, but is seeking an advisory opinion out of an abundance of caution as to whether he is prohibited from participating in the discussion and vote on the upcoming ordinance, and further, if he is prohibited from participation, whether he may make comment as a member of the public when this matter comes before the Town Council. 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 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. See R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Section 36-14-5(d) further prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, business associate(s), or any person within his family. Applying these provisions of the Code to this petitioner’s specific set of circumstances, the focus of inquiry becomes whether the petitioner’s property will be financially impacted, to either his benefit or to his detriment, by the proposed DMD ordinance. 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. 2007-41; A.O. 2007-17; A.O. 2006-52; A.O. 2006-49; A.O 2006-48; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99. Applying this presumption, the Commission has often opined that public officials may not participate in the discussion or vote on decisions concerning abutting property, absent some evidence that official action would not affect the financial interests of the public official, either positively or negatively. In the facts of this petitioner’s request, the petitioner concedes that the ordinance would likely result in a financial impact upon his property. Given this fact, and after considering the above representations, prior advisory opinions and applicable provisions of the Code of Ethics, the Commission concludes that the petitioner may not participate in hearings and voting on an ordinance and other matters surrounding the creation of a Damn Management District in the subject area. Notice of recusal must be filed with the Town Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Finally, the petitioner inquires whether, if he is in fact prohibited from participating in any official action before the Town Council regarding the DMD ordinance, he may nonetheless provide comment as a member of the public, after having properly recused. Commission Regulation 7003, sometimes called the “public forum exception,” provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child, in the same manner as any other abutting property owner or member of the public may. Thus, the petitioner may provide public comment regarding the DMD ordinance, after having properly recused pursuant to R.I. Gen. Laws § 36-14-6. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-6001 Commission Regulation 7003 Related Advisory Opinions: A.O. 2007-41 A.O. 2007-17 A.O. 2006-52 A.O. 2006-49 A.O. 2006-48 A.O. 2002-16 A.O. 2001-19 A.O. 2001-4 A.O. 2000-90 A.O. 99-148 A.O. 99-99 A.O. 99-92 A.O. 98-66 A.O. 98-58 Related Statutory Law: R.I. Gen. Laws § 45-62-2 R.I. Gen. Laws § 45-62-3 Keywords: Property Interest