Advisory Opinion No. 2008-63 Rhode Island Ethics Commission Advisory Opinion No. 2008-63 Re: Christopher Wilkens QUESTION PRESENTED The petitioner, a member of the Narragansett Town Council, a municipal elected position, requests an advisory opinion as to whether he is prohibited from voting on an amendment to the Narragansett Zoning Ordinance, given that he owns two properties within the district that is the subject of the amendment. RESPONSE It is the opinion of the Ethics Commission that the petitioner, a member of the Narragansett Town Council, a municipal elected position, is prohibited from voting on an amendment to the Narragansett Zoning Ordinance, given that he owns two properties within the district that is the subject of the amendment. The Petitioner is a member of the Narragansett Town Council (“Town Council’). He states that a pending Zoning Ordinance amendment is currently before the Town Council that would create a village zoning district in the Town of Narragansett and would designate certain properties as being within the new district. The Petitioner states that the proposed amendment to the Zoning Ordinance will have the practical effect of changing the subject district from a purely residential zone to a mixed use one, with the long-term intent being to encourage more affordable housing in the area. The Petitioner estimates that the amendment would impact approximately seventy properties within the district. The Petitioner owns two properties within the district to be rezoned, one being his principal residence, and the other being a two-family rental property. The Petitioner states that it is uncertain what the resulting financial impact of the amendment would be on either property. 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. 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 reliable 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 owns two of approximately seventy total properties, not merely abutting, but actually located within the newly proposed village zoning district that would be affected by the amendment. 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 the proposed amendment to the Zoning Ordinance. Notice of recusal must be filed with the Town Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Finally, we opine that the “class exception” found at R.I. Gen. Laws § 36-14-7(b) is inapplicable to this Petitioner’s circumstances, given that the Petitioner owns two of the approximately seventy properties that stand to be impacted by the proposed amendment. Furthermore, we note the general difficulty of applying this exception to matters involving actions that impact real property, given the unique nature of each discrete piece of real estate and the fact that actions affecting real property and its value will likely create a dissimilar impact on each property owner. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-6001 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 Keywords Class Exception Property Interest