Advisory Opinion No. 95-77

Re: Thomas F. Ryan

A. Question Presented

Whether a member of the Town of Cumberland's Zoning Board, who in his private employment works as a real estate appraiser, may participate and vote on a matter involving an applicant when the Zoning Board member previously had been retained by a mortgage company to do a real estate appraisal on the property that is the subject of the application.

B. Summary

The Code of Ethics does not prohibit a member of the Town of Cumberland's Zoning Board from participating and voting on an application when he previously performed a real estate appraisal on the property that is the subject of the application before the Board. The Zoning Board member did the appraisal approximately two years ago on behalf of a mortgage company. At no time did he contract with or otherwise become associated with the applicant with respect to the subject property. As a result the Zoning Board member and the applicant never became business associates nor did they ever establish any other sort of relationship that might implicate provisions of the Code of Ethics. Also, the Zoning Board member has no present interest in the property at issue.

C. Discussion

1. Facts

Thomas F. Ryan is a member of the Zoning Board in the Town of Cumberland. In his private employment he works as a real estate appraiser. An application before the Town's Zoning Board involves property that Mr. Ryan appraised in his private employment approximately two years ago. He was not hired by the current applicant to perform the appraisal; rather, a mortgage company retained him. He has no other interest in the property and no other current business or financial relationship with the current applicant.

Also, Mr. Ryan advises that approximately eight years ago he sold a house to the current applicant. There is no continuing financial relationship between Mr. Ryan and the applicant stemming from that transaction.

2. Analysis

The Code of Ethics provides that a public official should not act a) when he or she has an interest which is in substantial conflict with the proper discharge of his or her duties in the public interest (R.I. Gen. Laws § 36-14-5(a)), b) when he or she has private employment which will impair his or her independence of judgment as to his or her official duties (R.I. Gen. Laws § 36-14-5(b)), and c) to obtain financial gain for himself or herself, other than that provided by law (R.I. Gen. Laws § 36-14-5(d)). The prohibitions set forth in the Code attach when the potential benefits would accrue to the public official, a person within his or her family or a business associate of the official. In this instance, Mr. Ryan has no present interest in or relationship with either the property that is the subject of the application before the Zoning Board or the applicant. As a result, there is nothing with respect to the subject property or applicant that implicates provisions of the Code of Ethics.

This conclusion is in line with prior opinions of the Commission in which previous and/or attenuated relationships between Zoning Board members and applicants and/or properties that were the subject of the applications were deemed insufficient to bring the official's proposed actions within the purview of the Code of Ethics. See, e.g., Advisory Opinion No. 93-11 (a member of the Barrington Zoning Board of Review may also be employed as a real estate agent so long as he does not take action regarding any property or applicant with which he has a present business interest); Advisory Opinion No. 92-72 (a member of the Middletown Zoning Board may act with respect to a proposed application notwithstanding a limited social relationship between the member and an applicant before the Board).

Therefore, it is the opinion of this Commission that the Code of Ethics does not prohibit Mr. Ryan from participating in discussion and votes regarding a subject property that he appraised in his private employment approximately two years ago when he has no current interest in or relationship with the property or the current applicant before the Zoning Board.

Keywords

Private Employment

Business Associate