Advisory Opinion No. 2010-29 Rhode Island Ethics Commission Advisory Opinion No. 2010-29 Re: Michael Schnack QUESTION PRESENTED The Petitioner, a member of the Jamestown Town Council, a municipal elected position, who is on the waiting list to join the Jamestown Boat Owners Association, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in discussion and vote before the Town Council regarding the future use of Town property identified as Plat 10, Lot 145 located at Fort Wetherill, given that the Boat Owner’s Association holds a seven-year lease expiring in September of 2015 for waterfront access to that property. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, who is on the waiting list to join the Jamestown Boat Owners Association, is not prohibited by the Code of Ethics from participating in discussion and vote before the Town Council regarding the future use of Town property identified as Plat 10, Lot 145 located at Fort Wetherill, notwithstanding the fact that the Boat Owner’s Association holds a seven-year lease expiring in September of 2015 for waterfront access to that property. The Petitioner is a member of the Jamestown Town Council. He states that currently an issue regarding the determination of the future use of Town property located at Fort Wetherill and identified as Plat 10, Lot 145 has come before the Town Council for consideration. He states that there are a number of possible proposals which the Town may consider. For example, he represents that the State is interested in purchasing the property and maintaining control of the waterfront access to the property. Alternatively, he states that another possibility might be for the Town to subdivide the property and retain control over the waterfront access, while selling some portion of the remaining property to the State or some other entity. The Petitioner represents that, at this time, the Jamestown Boat Owners Association (“the JBOA”) holds a seven-year lease, which expires in September of 2015, on the waterfront access to Plat 10, Lot 145, which is the location of the Fort Wetherill Boat Basin. The JBOA is a group of 42 Jamestown residents and boat owners; membership in the JBOA entitles a member to a boat slip located at the Fort Wetherill Boat Basin for an annual fee of $600.00. The Petitioner states that there is currently a list of 103 people waiting to join the JBOA. He states that his name was placed on the list in May of 1999, and he is now number 51 on the list. He states that historically, less than one wait list name is forwarded to active membership per year and that the two most recently inducted members were on the waiting list for seventeen years prior to joining the JBOA. The Petitioner estimates that it would be at least seven to ten years before his name advances to the top of the list. Given this set of facts, the Petitioner requests an advisory opinion as to whether the Code of Ethics prohibits him from participating in discussion and voting regarding the Town’s future use of property identified as Plat 10, Lot 145 located at Fort Wetherill, given that the JBOA holds a seven-year lease expiring in September of 2015 for waterfront access to that property. The Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction 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). A substantial conflict of interest exists if the official or employee has reason to believe or expect that he or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Pursuant to Regulation 36-14-7001, a public official has reason to believe or expect a conflict of interest exists when it is "reasonably foreseeable." The probability must be greater than "conceivably," but need not be certain to occur. Also, a public official or employee may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his immediate family. See R.I. Gen. Laws § 36-14-5(d). The central question of this Petitioner’s request is the determination as to whether or not his position as 51st out of 103 on the JBOA waiting list creates a situation in which it is reasonably foreseeable that his participation in discussion and voting on the Town’s future use of Plat 10, Lot 145 will result in a direct monetary gain or direct monetary loss to the Petitioner. Previously, in Advisory Opinion 2007-53, this Commission considered a similar question. In that set of facts, a member of the Newport Waterfront Commission asked whether he was prohibited from participating in discussion and voting regarding the Waterfront Commission’s submission of a recommended mooring fee rate increase to the City Council, notwithstanding the fact that he had been on the waiting list for a private mooring for approximately five years and would experience a financial impact if the mooring fee was increased and he someday advanced to the top of the list and qualified for a mooring. In that advisory opinion, this Commission stated that “the fact that the Petitioner has a position on a waiting list for a private mooring does not prohibit him from participating in the proposed action, as any potential financial impact upon him because of this is too hypothetical and remote to be ‘reasonably foreseeable,’ given the fact that he has already been waiting for five years to obtain a private mooring to no effect.” It is the opinion of this Commission that the same analysis applies in the instant case. Here, the Petitioner has already been on the waiting list to join the JBOA and qualify for a slip located on the waterfront of Plat 10, Lot 145 for over ten years, and further, he estimates that it will be at least another seven to ten years before he advances to the top of the list; indeed, he provides that the most recent person to advance to the top of the list waited seventeen years to do so. As such, we consider the likelihood that the Petitioner’s actions as a Town Council member regarding the Town’s use of the property in question resulting in a direct financial impact to the Petitioner to be too hypothetical and remote. Accordingly, the Petitioner is not prohibited by the Code of Ethics from participating in discussion and vote regarding these matters currently before the Town Council. However, we note that this advisory opinion applies only to the facts as presented by the Petitioner regarding matters currently before the Town Council. If different matters concerning this property come before the Town Council in the future, for example, if the Petitioner seeks reelection and serves beyond the current expiration of his term in November of 2012 and the JBOA is preparing to negotiate a new lease on the waterfront access to the property in question, or, if circumstances change such that the Petitioner rapidly substantially advances on the JBOA waiting list, the Petitioner is highly encouraged to recuse in accordance with R.I. Gen. Laws § 36-14-6 and/or seek further advice or another advisory opinion from this Commission. Finally, we note that the Petitioner is advised that this opinion only addresses the application of the Code of Ethics and does not address whether any other statutes, rulings, regulations, charters, ordinances or policies prohibit or regulate the represented activities. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: A.O. 2007-53 Keywords: Financial Interest