Advisory Opinion No. 2010-25 Rhode Island Ethics Commission Advisory Opinion No. 2010-25 Re: Hannibal Costa QUESTION PRESENTED The Petitioner, a member of the Tiverton Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussion and voting in matters involving the Tiverton Yacht Club, given that his daughter and son-in-law are members of the Yacht Club. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Tiverton Town Council, a municipal elected position, is not prohibited from participating in discussion and voting in matters involving the Tiverton Yacht Club, notwithstanding the fact that his daughter and son-in-law are members of the Yacht Club, provided that there are no other facts or circumstances that would otherwise create a prohibited conflict of interest. The Petitioner is a member of the Tiverton Town Council (“Town Council”). He represents that, although he is not otherwise affiliated with the Tiverton Yacht Club (“Yacht Club”), his daughter and son-in-law are current members of the Yacht Club. He further states that while they have a family membership and make use of the facilities and have had family swimming and boating lessons over the course of time, neither his daughter nor son-in-law is an officer or in any other type of leadership position in the Yacht Club, nor do they make use of the Yacht Club moorings or slips. He states that the Yacht Club has been involved in contentious litigation with some of its neighbors for the last several years, and that it is within this context that the Town Council is preparing to undertake the process of considering a proposed zoning amendment which would impact the Yacht Club.[1] In this set of facts, the Petitioner requests an advisory opinion as to whether he may participate in discussion and voting regarding a proposed zoning amendment that will impact the Tiverton Yacht Club, given that his daughter and son-in-law are members of the Yacht Club. 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.” Additionally, 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 persons 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. 2007-58 (opining that a member of the Tiverton Planning Board is 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 is a member of the Board of Directors of the Yacht Club). In this instance, the Petitioner’s daughter has a family membership in the Yacht Club, but she is neither an officer, nor on the Board of Trustees, nor in any other type of leadership position in the Yacht Club. As such, the Petitioner’s daughter’s current association with that entity is not a business association under the Code of Ethics. Even if one were to assume arguendo, that the Petitioner’s daughter’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 employer or business associate. See A.O. 2009-30 (opining 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); 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). 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 association with the Tiverton Yacht Club, and his daughter’s membership is not a business association under the Code; as such, and barring any other relationship that would subject him to the prohibitions found in the Code of Ethics, he need not recuse from participation in matters involving the Yacht Club coming before the Town Council. See A.O. 2009-29 (opining that a member of the Tiverton Planning Board was 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 his sibling is a current general member of the Yacht Club). Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-7001 Related Advisory Opinions: A.O. 2009-30 A.O. 2009-29 A.O. 2007-58 A.O. 2002-41 Keywords: Family Memberships