Advisory Opinion No. 2015-11 Approved: March 10, 2015 Re: Bonnita B. Van Slyke QUESTION PRESENTED: The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Town Council’s consideration of matters involving Ninigret Park, given that her primary residence is located in an abutting private development. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Charlestown Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s consideration of matters involving Ninigret Park, notwithstanding that her primary residence is located in an abutting private development. The Petitioner is a member of the Charlestown Town Council (“Town Council”), having been elected in November 2014. She represents that her primary residence is located at 80 South Arnolda Road in Charlestown (“Town”). She states that she also owns two adjacent lots, one of which is vacant land, and the other contains a dock on Ninigret Pond. She informs that her residence and two adjacent lots are located in the private Arnolda development, which is owned by Arnolda Improvement Corporation (“AIC”), a non-profit entity. The Petitioner states that the Arnolda development is unique because the individual homeowners do not own an interest in the common property, unlike many other private subdivisions located in Rhode Island.[1] The Petitioner represents that she is one of approximately 70 property owners who are general members of AIC, and pay annual assessments to AIC for the maintenance of the common properties which include roads, a tennis court and a few docks. She states that AIC’s Board of Directors is authorized by the corporation’s by-laws to conduct the affairs and manage the property of the corporation. She informs that she is only a general member of AIC, having resigned from her position on AIC’s Board of Directors in July 2014 upon declaring her candidacy for the Town Council. The Petitioner represents that parts of the Arnolda development abut Ninigret Park (“Park”).[2] She states that her residence and the two adjacent lots are located 2000 feet or more from the nearest point of the Park’s perimeter.[3] However, she states that some of the AIC common property, including Arnolda Road, Colony Road and Hunters Harbor Road, abut or are within 200 feet of the Park’s boundary. She informs that these common properties in the Arnolda Development are solely owned by AIC and that she has no ownership interest in any of them. Given the geographical proximity of her residence to the perimeter of the Park and her general membership in the AIC corporation, the Petitioner seeks guidance relative to her ability to participate in Town Council decision-making involving the Park, such as event applications, consideration of any projects, improvements and funding for the Park. A person subject to the Code of Ethics may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she, any family member, business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). Under the Code of Ethics, a business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). First, the Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. In advisory opinions involving real property, the Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See, e.g., A.O. 2012-4; A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. Applying this presumption, the Commission has often opined that public officials may not participate in the discussion or vote on decisions concerning abutting property, absent reliable evidence that their official action would not affect the financial interests of the public official, either positively or negatively. In contrast, the Commission has previously applied the opposite presumption of no financial impact in advisory opinions where a public official’s property is near but not abutting the subject property. See A.O. 2002-30 (opining that a Jamestown Town Council member could participate in the determination of a location for a highway garage, notwithstanding that two of the location options were 1000 and 900 feet away from her land). See also A.O. 2003-44 (opining that a member of the Cranston Town Council could participate in the Safety Services and Licensing Committee’s consideration of a proposed license for the Krispy Kreme Donut franchise, notwithstanding that the proposed location was approximately 500 feet from his residence in the absence of evidence indicating a reasonable foreseeability of financial impact); A.O. 2003-13 (opining that an Exeter Town Council member could participate and/or vote in matters regarding a Job Corps Training Center to be located at the former Ladd Center, notwithstanding that he owns property approximately 3000 feet from the proposed project, because it was not reasonably foreseeable that he would derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s actions). The word “abutter” is a term of art defined in the Charlestown Code of Ordinances as “[o]ne whose property abuts at a border, boundary, or point with no intervening land.” Charlestown Code of Ordinances (“Code”) § 188-2.2.[4] The definition of “abutter” has been expanded, in certain circumstances, to require notice to be given to all property owners within two hundred feet of the perimeter of a property that is the subject of a request for a specific zoning amendment, special use permit, or variance.[5] Accordingly, for purposes of the above rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property, the Ethics Commission applies the presumption to all abutting property owners and those property owners who are required to receive 200-foot notices. Based upon the above representations, the Petitioner’s property neither adjoins the Park, nor is located within 200 feet of the Park’s perimeter. Rather, the Petitioner states that her three adjacent lots, which include her primary residence, are 2000 feet or more away from the nearest point of the Park’s perimeter. Therefore, the Petitioner is not an abutter and there is no automatic presumption of financial impact. Second, the Commission must ascertain whether the Petitioner, a general member of AIC, is a business associate of AIC. The Code of Ethics prohibits the Petitioner from taking official action that will have a financial impact upon her business associate. AIC owns property that abuts or is within 200 feet of the Park’s perimeter and, therefore, may be financially impacted by the Town Council’s actions involving the Park. See, e.g., A.O. 2006-49 (opining that a member of the East Providence Zoning Board was prohibited by the Code of Ethics from participating in the Zoning Board's consideration of an appeal from the Planning Board, given that his spouse’s uncle was an abutter to the property that was the subject of the appeal). The Commission has previously stated that persons are “business associates” of the entities for which they serve as either 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, e.g., A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC). In contrast, however, the Commission has generally held that mere membership in an organization, as opposed to the holding of a position as a director, officer, or other position of leadership, does not create a business association requiring recusal. See A.O. 2015-2 (opining that a Barrington Town Council member was not a business associate of the rowing club to which he paid a fee for his dependent son to be on the rowing team, given that he was not an officer or member of the rowing club’s board of directors); A.O. 2013-26 (opining that a Newport City Council member was not prohibited from participating in City Council matters involving the Newport Yacht Club (“Yacht Club”), notwithstanding that her husband was an individual member of the Yacht Club and paid annual dues to the Yacht Club, but was not an officer or member of the Yacht Club’s Board of Directors); A.O. 2009-39 (opining that the Barrington Town Planner’s general membership in the Bayside Family YMCA (“YMCA”), where he did not serve in any leadership position, did not constitute a business associate relationship with the YMCA and, thus, he was permitted to participate in Barrington’s review of the YMCA development proposal and plans). In the present matter, the Petitioner is one of approximately 70 members of AIC who pay annual assessments to AIC. She states that she resigned from her position on AIC’s Board of Directors in July 2014 upon declaring her candidacy for the Town Council. She represents that she has no ownership interest in any of the common property that abuts or is within 200 feet of the Park’s perimeter, which consists of a few roads. Accordingly, the Petitioner’s payment of an annual assessment to AIC does not constitute a “business associate” relationship as that term is defined in the Code of Ethics. For all of these reasons, absent some evidence indicating a reasonable foreseeability of financial impact upon the Petitioner’s property, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Town Council’s consideration of matters involving Ninigret Park, notwithstanding that her primary residence is located in an abutting private development. In her advisory opinion request letter, the Petitioner also sought advice as to whether she had any conflict with the Parks & Recreation Commission, which oversees the Park. Given the above analysis and conclusions, the Petitioner is not prohibited by the Code of Ethics from appointing members to the Parks & Recreation Commission or from serving as the Town Council’s non-voting liaison to the Parks & Recreation Commission. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2015-2 A.O. 2014-12 A.O. 2013-26 A.O. 2012-28 A.O. 2012-4 A.O. 2009-39 A.O. 2007-18 A.O. 2006-49 A.O. 2006-37 A.O. 2005-16 A.O. 2003-44 A.O. 2003-13 A.O. 2002-30 Keywords: Property Interest [1] See, e.g., A.O. 2014-12 (involving the Wickford Highlands development in North Kingstown, in which each homeowner has an interest in the commonly held property located throughout the subdivision). [2] Ninigret Park is a 227-acre property owned by the Town of Charlestown and operated by the Town’s Parks & Recreation Department. It features a playground, ball fields, a ten-speed bike course, tennis and basketball courts, picnic areas and a public beach on Little Nini Pond. The Park is open to the public year round. It hosts various special events and festivals each year. The Park is adjacent to the Ninigret National Wildlife Refuge, which is under the jurisdiction of the United States Fish & Wildlife Service. [3] The Petitioner received a map from the Charlestown GIS Coordinator, Steve McCandless, which shows that the south-western boundary of her three adjacent properties is 2000 feet from the nearest boundary of the Park. [4] State law defines “abutter” as “[o]ne whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land.” R.I. Gen. Laws § 45-24-31(1). [5] See Code § 218-13(B)(2) (specific ordinance amendment); Code § 218-23(B) (special use permit); Code § 218-24(A) (variance); R.I. Gen. Laws § 45-24-53(c)(2) (containing a similar notice requirement for specific changes to an existing ordinance)