Advisory Opinion No. 96-54

John R. Payne, Jr.

QUESTION PRESENTED

The Assistant Town Solicitor for the Town of Westerly requests an advisory opinion as to whether Zoning Board of Review and Planning Board members may participate in matters concerning rezoning for the YMCA given that several members of these Boards are also members of the YMCA and one Planning Board member is a former member of the YMCA Board of Directors.

RESPONSE

The Code of Ethics provides that an official cannot have an interest in substantial conflict with the proper discharge of his or her duties or employment in the public interest by which he or she, his family or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws § 36-14-5(a).

Provided that the petitioners are not in a position at the YMCA to affect the financial objectives of the YMCA through voting or other means, such membership is not enough to rise to the level of a "business associate" under the Code of Ethics. Similarly, so long as the Planning Board member is a former member of YMCA Board of Directors and does not maintain a position at the YMCA to affect its financial objectives, the "business associate" relationship has ended. This conclusion is in accordance with A. O. 95-59 (concluding that a Smithfield school committee member could vote to allow an organization to use school facilities, given that the petitioner was associated with that organization, unless the official's association with the organization allows him or her to affect the financial objectives of the organization, through formal voting rights or other means). This is in contrast to other advisory opinions where the public officials, who are also members of the Board of Directors of a non-profit organization, must exercise the recusal sections of the Code when the organization's interests appear before the public official.

Based on the petitioner's representations, provisions of the Code, and previous advisory opinions, we conclude that the Code of Ethics does not prohibit members of the Zoning Board of Review and Planning Boards from participating in matters concerning the YMCA in their official capacities solely by virtue of their membership with the YMCA so long as they are not in a position at the YMCA to affect the financial objectives of the YMCA through voting or other means.

Code Citations:

36-14-5(a)

36-14-6

36-14-7(a)

Related Advisory Opinions:

95-59

93-60

92-67

92-31

91-07

89-103

Keywords:

non-profit boards

business associates

memberships