Advisory Opinion No. 2010-13 Rhode Island Ethics Commission Advisory Opinion No. 2010-13 Re: Bradford G. Marthens QUESTION PRESENTED The Petitioner, a member of the Block Island Planning Board, who is also the owner and innkeeper of the Atlantic Inn, located on Block Island, requests an advisory opinion as to whether he may participate in discussion and voting on a recommendation by the Planning Board to the Town Council regarding an application by Ballard’s Inn, Realty, LLC, for a proposed amendment to the New Shoreham zoning ordinance. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Block Island Planning Board, who is also the owner and innkeeper of the Atlantic Inn, located on Block Island, may not participate in discussion and voting on a recommendation by the Planning Board to the Town Council regarding an application by Ballard’s Inn, Realty, LLC, for a proposed amendment to the New Shoreham zoning ordinance, and must recuse in accordance with R.I. Gen. Laws § 36-14-6. The Petitioner is a member of the Block Island Planning Board (“Planning Board”). He represents that in his private capacity, he and his wife are the owners and innkeepers of the Atlantic Inn, a twenty-one room Victorian Inn and Restaurant on Block Island. According to its web site at http://www.atlanticinn.com, the Atlantic Inn offers lodging, dining, wedding, meeting, and conference facilities. The Petitioner states that an application that was submitted by Shoreham, Inc., regarding Ballard’s Inn, Realty, LLC, Plat 7, Lot 23, recently came before the Planning Board requesting a proposed amendment to the zoning ordinance section of the planned development ordinances. The Petitioner states that the applicants are asking the Planning Board to make a recommendation to the Town Council with regard to the proposed amendment. The Petitioner states that the proposed amendment would allow for the current Ballard’s Inn and Restaurant (“Ballard’s”), located on an existing non-conforming piece of ocean front beach land, to be replaced with a year round hotel and conference center, which would have approximately 40 rooms. The Petitioner estimates that Ballard’s and the Atlantic Inn are located within less than one half mile of each other. Given this set of facts, the Petitioner requests an advisory opinion as to whether he may participate in discussion and vote regarding the Planning Board’s recommendation to the Town Council on this matter. The Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if, among other reasons, the public official has reason to believe or expect that he or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, a public official may not use his public office or confidential information received from his public office to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. R.I. Gen. Laws § 36-14-5(d). In the past, the Commission has consistently opined that public officials may not participate in matters coming before them in their public capacity when it is reasonably foreseeable that such matters will have a direct financial impact on the official’s own business or on that of a direct competitor. See A.O. 2006-23 (opining that a member of the Coventry Planning Commission is required to recuse from consideration of matters involving his employer, Universal Properties Group, Coventry’s largest residential and commercial developer, and his employer’s direct competitors); A.O. 2002-23 (CRMC member who is owner of Brown & Howard Wharf Marina on Newport Harbor may not participate in CRMC matters pertaining to Waites Wharf, a competitor within 1,500 feet of the Petitioner's property); A.O. 99-9 (opining that a Narragansett Town Councilor who owns a restaurant holding a liquor license could not participate in matters directly affecting his business, and further advising that direct impact is presumed for any establishment within a close proximity to or otherwise in direct competition with his restaurant); A.O. 96-24 (recognizing that an Alternate Member of the Newport Zoning Board of Review who is part owner and operator of a hotel and landlord to a restaurant and dance club, may not participate in matters affecting other hotels or matters affecting restaurant, dance clubs, or bed and breakfasts that are located within 500 feet of the Petitioner’s businesses). In this instance, given the nature of the Petitioner’s business and the matter before the Planning Board, it is the opinion of the Ethics Commission that it is reasonably foreseeable that there could be a direct financial impact on both the Petitioner’s business and that of a direct competitor as a result of the matter currently pending before the Planning Board. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may not participate in the Planning Board’s recommendation to the Town Council with regard to the application of Shoreham, Inc. for a proposed amendment to the zoning ordinance which would enable Ballard’s Inn, Realty, LLC to build a year round hotel and conference center, based on the similar nature of the businesses and the close proximity between the two. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2006-23 A.O. 2004-38 A.O. 2002-23 A.O. 99-9 A.O. 96-101 A.O. 96-70 A.O. 96-24 Keywords: Competitor(s)