Advisory Opinion No. 2009-29 Rhode Island Ethics Commission Advisory Opinion No. 2009-29 Re: Philip C. Marks QUESTION PRESENTED The Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, requests an advisory opinion as to whether he is prohibited from participating in the provision of an advisory opinion by the Planning Board to the Tiverton Town Council regarding a request by the Tiverton Yacht Club for the rezoning of a portion of the Town, given that he is a former general member of the Yacht Club and his sibling is a current general member of the Yacht Club. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, is not prohibited from participating in the Planning Board’s provision of an advisory opinion to the Tiverton Town Council regarding a request of the Tiverton Yacht Club for the rezoning of a portion of the Town, notwithstanding the fact that he is a former general member of the Yacht Club and his sibling is a current general member of the Yacht Club. The Petitioner is a newly appointed member of the Tiverton Planning Board (“Planning Board”), having been appointed in October of 2008. He states that, currently, there is a request for an advisory recommendation before the Planning Board from the Tiverton Town Council (“Town Council’), regarding a request made by the Tiverton Yacht Club (“Yacht Club”) for the rezoning of a portion of the Town. The Petitioner represents that the focus of the request is the area encompassing Riverside Drive, where the Yacht Club is located. He states that the side of that street adjacent the water is zoned so as to allow for marina activity, but that the Yacht Club is located on the other side of the street, which is zoned as residential only. The Yacht Club is a small organization, the maximum membership of which is kept to 200 families. The Yacht Club offers family-oriented activities, including Red Cross certified swimming lessons, sailing lessons for children and teens, and other general family-oriented social gatherings. The Yacht Club also runs a small marina, which is located across the street from the Yacht Club’s main facility, which includes about 20 slips for mooring boats. The former Yacht Club building located on Riverside Drive in Tiverton, which housed the activities and operations of the Yacht Club since the 1950s, burned down in a fire in 2003. In the aftermath of the fire, in its attempts to rebuild on the same site, the Yacht Club has been a party to a protracted legal dispute with abutting property owners. Previously, the Yacht Club was permitted to run its operations out of the Riverside Drive location, which is an area zoned as R-40 (residential), under a non-conforming special use allowance. The Yacht Club has submitted a request to the Town Council for an amendment to the zoning ordinance. The Town Council has now asked the Planning Board for an advisory recommendation. The Petitioner represents that he was a general member of the Tiverton Yacht Club for approximately five years, ending in approximately 2001. He states that he was never an officer of the Yacht Club or in any other kind of leadership position, but rather, that he had a general family membership so that his children could take sailing lessons there. He further represents that one of his siblings is a current member of the Yacht Club. He states that this sibling is not an officer or in any other kind of leadership position in the Yacht Club, nor does the sibling utilize a mooring or a slip, or even own a boat, but rather, makes use of a family membership for the primary purpose of family lessons. As such, the Petitioner requests an advisory opinion from this Commission as to whether he may participate in the Planning Board’s consideration and recommendation to the Town Council on the proposed amendment, given that he is a former member of the Yacht Club and his sibling is a current member. Under the Code of Ethics, a public official or employee 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 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 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). Commission Regulation 36-14-7001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, an official may not participate in a matter concerning or presented by a business associate, and must recuse 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 “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). In the past, the Commission has concluded that public officials are "business associates" of entities for which they serve either as officers or members of the Board of Directors or in some other leadership position that permits them to affect the financial objectives of the organization. See A.O. 2000-74 (concluding that Housing Authority Commissioners may not participate in that Authority’s consideration of the Westerly Housing Association’s funding request, because, as members of the Board of Directors of the Housing Association, the Commissioners had a business association with it); A.O. 98-76 (opining that a member of the Narragansett Town Council may not participate in matters concerning the Narragansett Chamber of Commerce, including the upcoming vote on a possible appropriation of funds to the organization, given that she serves on its Board of Directors). In this instance, the Petitioner’s personal association with the Yacht Club has long terminated and while his sibling has a family membership in the Yacht Club, the sibling is not an officer, on the Board of Trustees, or in any other type of leadership position in the Yacht Club. As such, neither the Petitioner’s past association with the Yacht Club nor his sibling’s current association with that entity is a business association under the Code of Ethics. Even if one was to assume arguendo, that the Petitioner’s sibling’s membership in the Yacht Club somehow constituted a business association, this Commission has found that a public official is not required to recuse from matters that cause a financial impact solely upon his family member's business associate. See 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. 99-85 (opining that a Little Compton Town Councilor’s spouse’s business association was too remote to implicate the prohibitions set forth under the Code); A.O. 99-28 (opining that a 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-thrus would impact his spouse's employment). If the Petitioner himself had a business association with the Yacht Club, then he would clearly be required to recuse from these matters. See 2007-58 (opining that a member of the Tiverton Planning Board was prohibited from participating in the Planning Board’s review of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club, given that he was a member of the Board of Directors of the Yacht Club, and thus, a business associate of that entity). In this instance, however, the Petitioner himself has no current association with the Tiverton Yacht Club, and his sibling’s membership is not a business association under the Code; as such, and barring any other relationship that would subject him to the Code of Ethics, he need not recuse from participation in matters involving the Yacht Club coming before the Planning Board. Code Citations : § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions : A.O. 2007-58 A.O. 2002-41 A.O. 2000-74 A.O. 99-28 A.O. 99-85 A.O. 98-76 Keywords : Business Associate Family: Business Interest