Advisory Opinion No. 95-25

Re: William J. Wholean

A. QUESTION PRESENTED

An elected member of the Westerly Town Council requests an advisory opinion as to whether he may vote on and/or otherwise participate in matters relating to litigation between the Town and the Weekapaug Fire District, which involves a dispute over ownership of a "sand trail" on Weekapaug Beach, when there is a remote possibility that the value of real property owned by the councilor could be affected by the resolution of the law suit.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the remote possibility that a real property interest of a Westerly Town Councilor might be affected by the resolution of a law suit between the Town of Westerly and the Weekapaug Fire District, which involves a dispute over ownership of a "sand trail" on Weekapaug Beach, does not constitute a substantial conflict with the proper discharge of the councilor's ... duties and employment in the public interest. Therefore, his voting and/or participation regarding matters relating to the litigation does not constitute a prohibited activity under the Code of Ethics. The Commission further notes that the nature of the petitioner's interest does not differ in any respect from scores of other owners of real property in the area, and thereby qualifies for the class exemptions set forth in R.I. Gen. Laws 36-14-7(b).

C. DISCUSSION

1. Facts

The petitioner, William Wholean, is an elected Member of the Westerly Town Council. Prior to his becoming a member of the Council the Town was sued by the Weekapaug Fire District regarding the disputed ownership of a "sand trail" on Weekapaug Beach. Mr. Wholean owns a parcel of real property located approximately three miles from the Beach. A remote possibility exists that the value of that property could be affected by a decision granting the Town of Westerly control over the sand trail. Otherwise he has no financial interest in the outcome of the case.

2. Analysis

The Code of Ethics prohibits public officials and employees from taking actions in their public capacities from which they may obtain financial gain or which are in substantial conflict with the proper discharge of their public responsibilities. See R.I. Gen. Laws 36-14-5(a) and (d). Those prohibitions do not attach, however, in situations where the possibility of financial gain or substantial conflict is too remote as to affect a reasonable person's decision-making processes.

Here, the Commission concludes that Mr. Wholean is not prohibited from participating in matters involving the on-going litigation between the Town of Westerly and the Weekapaug Fire District by virtue of his ownership interest in a parcel of real property. The remote possibility that a real property interest of his might be affected by the resolution of a law suit between the Town and the Fire District, which involves a dispute over ownership of a "sand trail" on Weekapaug Beach, does not constitute a "substantial conflict with the proper discharge of his ... duties and employment in the public interest," and, therefore, his voting and/or participation regarding matters relating to the litigation does not constitute a prohibited activity under the Code of Ethics. The Commission further notes that the nature of the petitioner's interest, which does not differ in any respect from scores of other owners of real property in the area, also would qualify it for the class exemptions set forth in R.I. Gen. Laws 36-14-7(b).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(b)

Keywords:

Property interest

cClass exception