Advisory Opinion No. 96-25 Re: Douglas D. Cohen A. QUESTION PRESENTED An Alternate Member of the Newport Zoning Board of Review requests an advisory opinion as to whether he may participate and vote on zoning matters relating to restaurant, dance club or bed and breakfast uses given that the Member also is a part owner and operator of a hotel and is a landlord for a restaurant and dance club in Newport. The petitioner represented that he would recuse from participation in zoning decisions affecting hotels in Newport. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit an Alternate Member of the Newport Zoning Board of Review, who is part owner and operator of a hotel and landlord to a restaurant and dance club, from participating in all zoning cases relating to restaurant, dance club or bed and breakfast uses. However, where the Petitioner has a direct interest in the matter or the bed and breakfast, dance club or restaurant use is within 500 feet of the Petitioner's business, the Petitioner must exercise the notice and recusal sections of the Code. The petitioner is cautioned that the Code of Ethics prohibits recusals on a frequent and regular basis (See Code Regulation 36-14-5003). C. DISCUSSION 1. Facts The Petitioner, Douglas D. Cohen, is an alternate member of the Newport Zoning Board of Review. Mr. Cohen is also part owner and operator of the Hotel Viking, a 180-room hotel in Newport. Additionally, Mr. Cohen is the landlord for the Great American Pub and Thames Street Station, a restaurant and dance club which is also located in Newport. The petitioner requests an opinion as to whether he may participate in any or all decisions that affect either the restaurant or bed and breakfast industry. 2. Analysis At issue in this advisory opinion request is whether Douglas Cohen may participate and vote in zoning cases involving the restaurant and bed and breakfast industries. Under the Code of Ethics, the Petitioner 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. Substantial conflict is defined as a "direct monetary gain or a direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The Commission has found substantial conflicts requiring recusal to exist where the applicant before the Board or Council is in close proximity of the business or property owned by the Board member or his/her family. See A.O. 92-19 (concluding that a South Kingstown Town Councilor could vote on matters concerning liquor licenses in the town while her spouse had a financial interest in a restaurant holding a liquor license so long as the Councilor exercised notice and recusal sections of the Code if an establishment petitioning for a liquor license is within a close proximity of her spouse's business). See also A.O. 92-20. And see A.O. 94-42 (concerning property adjacent to member's daughter) and A.O. 90-34 (property within 200 feet of member's investment property). Those businesses in close proximity to a Councilor's business are considered to be the Councilor's competitors and therefore represent a substantial conflict with the proper discharge of the member's duties in the public interest See also A.O. 94-24, (the Commission ruled that the Mayor, as a member of the Board of Licenses Commission and as a part-owner of a business holding a liquor license, could not participate in decisions involving campaign contributors or his or his family's competitors). Additionally, the Commission has found that a Councilor could not participate in matters directly impacting on the Councilor's employer. A.O. 92-65. See also A.O. 91-41 (Bristol Town Councilor who was also a liquor sales person for a distributing company could not participate in matters concerning liquor licensing because his employer would suffer a direct monetary gain or direct monetary loss by reason of his official activity). Similarly, the Commission has found substantial conflicts when a Councilor participates in matters involving the new regulation of an industry. In A.O. 90-57 the Town Councilor could not participate in any matter relating to new zoning regulations of the day care industry given that the member also operated a day care center. After considering the Petitioner's request, relevant provisions of the Code, and previous Advisory Opinions, we conclude that the Code of Ethics does not prohibit Mr. Cohen, the alternate Newport Zoning Board of Review Member, from participating in zoning decisions that do not directly impact him. We note that the Petitioner will not participate in zoning decisions concerning hotels in Newport. Additionally, the Petitioner may not be affected by zoning decisions with regard to other restaurant or bed and breakfast businesses due to their lack of proximity and therefore lack of impact on his business. However, the Petitioner may be directly impacted through decisions on his own or his business' property, property adjacent to him or his businesses, and other bed and breakfast or hotel and restaurant and dance clubs within 500 feet. Therefore, where an applicant in the restaurant, dance club, or bed and breakfast industry appears before the Newport Zoning Board of Review and is within 500 feet or otherwise directly impacts any of Mr. Cohen's businesses, we advise Mr. Cohen to recuse himself from participation in accordance with R.I. Gen. Laws § 36-14-6. Also, we caution the Petitioner that if he is forced to recuse himself on a frequent and regular basis, it may implicate the provisions of Commission Regulation § 36-14-5003, which prohibit an official from recusing with such frequency as to give the appearance of impropriety. Code Citations: 36-14-5(a) 36-14-5003 36-14-7 Related Advisory Opinions: 94-42 94-24 92-65 92-20 92-19 91-41 90-57 90-34 Keywords: competitors business interest