Advisory Opinion No. 95-89

Re: Richard D. Comolli

A. QUESTIONS PRESENTED

Whether Richard D. Comolli, a Westerly Town Councilor, may participate and vote on matters relating to the regulation of refuse in the Town where (1) his son previously had represented collectively the interest of trash haulers that did business in the Town before the Town Council; (2) his son continues to represent an individual engaged in the trash removal business in other general matters; and (3) he owns a three family tenement in the Town.(1)

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that Mr. Comolli may participate and vote on general matters involving trash removal and storage in the Town of Westerly. Mr. Comolli, however, should not participate or vote on any specific matter in which his son appears before the Council in either a professional or personal capacity.

C. DISCUSSION

1. Facts

The Town of Westerly has recently enacted an ordinance, the "bag program," requiring all individuals whose trash is transported to Westerly's land fill to recycle and purchase certain orange bags from the Town to store trash. During the proceedings before the Town Council regarding this ordinance the petitioner's son, an attorney, represented the trash haulers who do business with the Town (who apparently opposed this ordinance and, subsequent to its passage, have sued the Town). Given this interest, the petitioner recused himself from the Council's proceedings relating to this ordinance.

The petitioner advises that his son no longer represents the interests of the trash haulers before the Council. The son does, however, continue to provide representation to one hauler who, although licensed by the Town of Westerly, does not use the Westerly town landfill. The petitioner also advises that, as the owner of a three-family tenement in Westerly, he is affected by the ordinance.

2. Analysis

Mr. Comolli requests an opinion concerning whether he, as a Town Councilor, may participate and vote on future issues relating to a local ordinance for trash removal where his son had represented trash haulers before the town and continues to represent one trash hauler that does not use the Town's land fill and where he owns an apartment building in the Town. Under the Code of Ethics, the petitioner, as a public official, 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), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), Mr. Comolli is also prohibited from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or any person within his family.(2)

After considering the petitioner's request as to whether his son's past and present representation prevents him from participating in matters relating to the local ordinance, we conclude that he may participate and vote on general policy matters relating to trash removal in the Town. See A.O. 91-36 (determining that a member of the Newport Zoning Board could participate and vote on two petitions filed by the Newport Hospital even though her husband, a partner in the law firm of Licht and Semonoff, had represented the Hospital on other matters unrelated to the petitions). See also A.O. 90-27. Our conclusion is based on the petitioner's representations that his son no longer represents the trash haulers before the Town. As such, the petitioner no longer has an interest which is in conflict with his position as Town Councilor.

The petitioner, however, is prohibited from participating or voting on any specific matter in which his son appears before the Council in either a professional or personal capacity since his son's appearance creates an impermissible conflict of interest. See A.O. 93-25 (concluding that the petitioner, a Town Councilor whose father operated an establishment with a liquor license, could not participate or vote on any matter concerning the issuance of liquor licenses to her father but could participate or vote on general matters involving liquor licenses within the municipality). In the event that a matter comes before the Council in which his son enters an appearance, the petitioner should (a) advise the Town Council, in writing, of the nature of his interest in the matter at issue, and (b) recuse himself from any discussions or votes relating to this matter. Pursuant to R.I. Gen. Laws § 36-14-6, the petitioner should also file copies of any recusal notices with this Commission.

As to the petitioner's other concern, whether his ownership of an apartment building creates an impermissible conflict of interest, we conclude that such ownership is not an interest which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-7. Accordingly, this interest does not prevent him from participating on matters relating to the local refuse ordinance.

Footnotes

(1) In his written request, Mr. Comolli only asked whether his son's past and present representation of trash haulers prevented him from participating and voting on matters relating to the removal and storage of refuse in the Town of Westerly. In a subsequent phone conversation, Mr. Comolli indicated that the Town may consider extending the refuse ordinance to apartment and commercial buildings and requested guidance on whether he could participate where he owned a three-family tenement. During the Commission's meeting on September 13, 1995, Mr. Comolli and Town Solicitor John Levanti indicated that the Town is not considering extending the ordinance to apartment buildings since it already applies to such buildings. Mr. Levanti also indicated that the Town is not considering limiting the enforcement of this ordinance to homeowners.

(2) For the purposes of R.I. Gen. Laws § 36-14-5(d), the definition of family includes adult children. See Commission Regulation 36-14-5005.

Keywords

Nepotism

Family: Acting as Agent

Property Interest