Advisory Opinion No. 2008-60 Advisory Opinion No. 2008-60 Re: Norman Frechette QUESTION PRESENTED: The Petitioner, a member of the Woonsocket Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether he may participate in discussion and voting on a petition for a variance brought by CVS Caremark Corporation, given that the Petitioner’s son and nephew are employed in the shipping department of CVS Caremark. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Woonsocket Zoning Board of Review, a municipal appointed position, may participate in discussion and voting on a petition for a variance brought by CVS Caremark Corporation, notwithstanding the fact that the Petitioner’s son and nephew are employed in the shipping department of CVS Caremark. The Petitioner is a member of the Woonsocket Zoning Board of Review (“Zoning Board”). 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 (“CVS”), 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. The Petitioner further advises that his non-dependent son and a nephew are both employees of CVS in the shipping department. The Petitioner advises that the variance application before the Zoning Board will not result in a financial impact to his son or nephew whether the application is approved or rejected nor is there any indication that those family members’ employment will be impacted. Given this set of facts, the Petitioner asks whether the Code of Ethics prohibits his participation in the Zoning Board's consideration of the variance. 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 36-14-7001. 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. The Code of Ethics defines the term "business associate" as "a person joined together with another person to achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3). A "person" is defined as "an individual or business entity." R.I. Gen. Laws § 36-14-2(7). This Commission has previously opined that a public official is not required to recuse from matters that may cause a financial impact upon his family member's employer or business associate, as long as there is no corresponding financial impact upon the family member. See A.O. 2007-16 (opining that a member of the Johnston School Committee may participate in the Committee's review of bills submitted by The Providence Center, a provider of special education services that employs the Petitioner's mother as an office assistant); A.O. 2002-41 (opining that a Westerly Town Council member may participate in the consideration of matters involving an individual with whom his father had business dealings in a real estate broker/client relationship, as the Petitioner's relationship with the individual was too remote to trigger the prohibitions set forth in the Code of Ethics); A.O. 99-28 (opining that a Westerly Zoning Board of Review member was not prohibited from participating in the review of an application for a special use permit to construct a drive-thru, notwithstanding the fact that the applicant employed the Petitioner’s spouse, since the Petitioner's relationship with the applicant was too remote to implicate the prohibitions set forth in the Code, and there was no evidence that the construction of the drive-thru would impact his spouse's employment). Consistent with the above-cited advisory opinions, in the facts as represented by this Petitioner there is nothing to indicate that it is reasonably foreseeable that the Petitioner’s involvement in the variance application before the Zoning Board will have a financial impact upon his son or nephew as employees of CVS. However, if circumstances should change such that it is reasonably foreseeable that his participation in matters involving CVS may result in a financial impact upon his son, he is encouraged to seek further guidance from this Commission and/or recuse from participation in accordance with R.I. Gen. Laws § 36-14-6. Thus, barring any other relationship that would implicate provisions of the Code of Ethics, this Petitioner is not prohibited by the Code of Ethics from participating in the Zoning Board’s review of an application for a variance submitted by CVS. 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: 2007-16 2002-41 99-28 Keywords: Business associate Financial interest