Advisory Opinion No. 2008-58 Rhode Island Ethics Commission Advisory Opinion No. 2008-58 Re: Peter Vosdagalis QUESTION PRESENTED: The Petitioner, a member of the of the Woonsocket Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Zoning Board’s consideration of a variance application by CVS Realty Corporation, given that the Petitioner’s pizza business typically sells CVS Caremark approximately $6,000 worth of pizza each year. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Woonsocket Zoning Board, a municipal appointed position, may not participate in the Zoning Board’s consideration of a variance application by CVS Realty Corporation, given that his pizza business typically sells CVS Caremark approximately $6,000 worth of pizza each year. The Petitioner advises that he is a member of the Woonsocket Zoning Board of Review (“Zoning Board”). In his private capacity, the Petitioner informs that he is the owner of Ollie’s Pizza (“Ollie’s”). The Petitioner states that CVS Caremark (“CVS”) has an ongoing business account with Ollie’s and typically purchases approximately $6,000 worth of pizza every year. He further states that Ollie’s has been doing business with CVS for about 10 years and intends to continue this business relationship on an ongoing basis. The Petitioner advises that in December of 2008, the Zoning Board will be considering a variance application by CVS Realty, a subsidiary division of CVS Caremark, which will likely request more signage and retail area than the Woonsocket Zoning Ordinance currently allows in the MU-1 zoning district in which the proposed store site is located. As such, given his business relationship with CVS, the Petitioner seeks guidance from the Commission as to whether it would be a conflict of interest for him to participate in the Zoning Board’s consideration of the variance application brought by CVS. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws 36-14-5(a). The Petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). The Code further provides that the Petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain for himself or any business associate, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Additionally, no business associate of any person subject to this Code of Ethics shall represent himself before the municipal agency of which the person is a member 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 an individual or business joined together with another individual or business to achieve a common financial objective. R.I. Gen. Laws §§ 36-14-2(3); 36-14-2(7). In the instant matter, based upon the representations made by the Petitioner, the Petitioner is a business associate of CVS. Accordingly, the Commission opines that the Code of Ethics prohibits the Petitioner from participating in the Zoning Board’s consideration of a variance application brought by CVS, given that his company has an ongoing business association with CVS. See A.O. 2008-45 (opining that a member of the Woonsocket Planning Board may not participate in the Planning Board’s consideration of an application by CVS to develop a store site in Woonsocket, given that the Petitioner’s company performed various repairs and maintenance for CVS, and thus was a business associate of that entity). Furthermore, section 5(f) of the Code of Ethics requires the Petitioner to recuse from the Zoning Board’s consideration of this matter involving his business associate. Notice of recusal must be filed with the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-2(3) 36-14-2(7) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) Related Advisory Opinions : A.O. 2008-45