Advisory Opinion No. 2009-30 Rhode Island Ethics Commission Advisory Opinion No. 2009-30 Re: N. David Bouley QUESTION PRESENTED The Petitioner, a member of the Woonsocket Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he may participate in Planning Board matters involving the proposed development of a new CVS Caremark retail store, given that the Petitioner's daughter is employed by Rite Aid Corporation, a competitor of CVS, and that other family members were previously employed by CVS. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Woonsocket Planning Board, a municipal appointed position, may participate in Planning Board matters involving the proposed development of a new CVS Caremark retail store, notwithstanding the fact that the Petitioner's daughter is employed by Rite Aid Corporation, a competitor of CVS, and that other family members were previously employed by CVS. The Petitioner is a member of the Woonsocket Planning Board ("Planning Board"). He states that currently pending before the Planning Board is a proposal by CVS Caremark ("CVS") for the development of a new store site in Woonsocket. According to the Petitioner, as the CVS matter moves forward it will require a change in the zoning ordinance by the Woonsocket City Council as well as a number of approvals from the Planning Board. The Petitioner informs that his adult, non-dependant daughter is employed as an assistant manager at a Woonsocket retail store owned by Rite Aid Corporation ("Rite Aid"), a competitor of CVS. In a telephone conversation with Commission staff, the Petitioner stated that he had no reason to believe that his daughter would be financially impacted by the opening of the newly proposed CVS retail location. In fact, the Petitioner states that the pending CVS proposal calls for the closure of an existing CVS store that is located nearer to the store his daughter works at than the location of the proposed CVS store. The Petitioner also represents that other family members have, in the past, worked for CVS. He notes that his wife, another daughter, and his son all previously worked for CVS, but that none of them have been employed there for approximately two (2) years. Given all of the above, the Petitioner asks whether the Code of Ethics permits his participation in the Planning Board's consideration of the CVS proposal. Under the Code of Ethics, a public official may not participate in any matter as part of his or her public duties if he has reason to believe or expect that any person within his family is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. Commission Regulation 36-14-5004(b)(1). See also R.I. Gen. Laws §§ 36-14-5(a), 5(d), and 7(a). In several recent and highly analogous advisory opinions, the Ethics Commission has opined that a public official is not required to recuse from matters that may cause a financial impact upon his family member's employer, as long as there is no corresponding financial impact upon the family member. For example, in Advisory Opinion 2008-69, the Commission advised a member of the Woonsocket Zoning Board of Review that he was permitted to participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the Petitioner’s sister was employed as an accounting analyst with CVS. In reaching this opinion, the Commission relied upon the facts as represented by the Zoning Board member that there was nothing to indicate that it was reasonably foreseeable that the outcome of the variance application before the Zoning Board would have a financial impact upon his sister as an employee of CVS. See also A.O. 2008-60 (opining that a member of the Woonsocket Zoning Board of Review may participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the Petitioner’s son and nephew were employed in the shipping department of CVS); 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 the Petitioner’s official involvement in CVS's proposals before the Planning Board will have a financial impact upon his daughter as an employee of Rite Aid, a CVS competitor. The Petitioner's daughter is not a party to or participant in the matter before the Planning Board, nor does she stand to obtain any sort of financial or employment advantage as a result of the Planning Board's actions. Furthermore, the Petitioner's other family members do not stand to be financially impacted in any way, given that their former employment with CVS terminated more than two (2) years ago. Thus, barring any other relationship that would implicate provisions of the Code of Ethics, this Petitioner is not prohibited from participating in the Planning Board’s consideration of the CVS proposal. However, if any circumstances should change such that it is reasonably foreseeable that the Petitioner's participation in matters involving CVS may result in a financial impact upon his daughter or any other member of his family, 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. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) Regulation 5004 Related Advisory Opinions : 2008-69 2008-60 2007-16 2002-41 99-28 Keywords : Nepotism