Advisory Opinion No. 96-63 Re: Alexander Biliouris A. QUESTION PRESENTED A councilor serving as a member of the North Smithfield Town Council, an elected municipal official, requests an advisory opinion as to whether he may participate in a matter concerning removal of a stipulation which limits a developer to the construction of single family homes, given that (a) the subdivision is next to the petitioner's home, (b) but the particular lot of concern within the subdivison is more than 200 feet away from petitioner's property, and (c) the petitioner obtained adjacent property from the developer. B. SUMMARY The Code of Ethics does not prohibit the petitioner, a councilor serving as an elected member of the North Smithfield Town Council from participating in a decision regarding the removal of a stipulation on a lot more than 200 feet from his property. This opinion is based on the following representations: (1) the decision before the petitioner concerns only the removal of a stipulation on one lot, (2) the lot of concern is more than 200 feet from the petitioner's property, (3) any business associate relationship with the developer has ended, (See R.I. Gen. Laws § 36-14-2(8)) and (4) any financial impact to the petitioner is too remote to cause a substantial conflict with the proper discharge of his duties in the public interest. (See R.I. Gen. Laws § 36-14-5(a) and R.I. Gen. Laws § 36-14-7(a)). C. DISCUSSION 1. Facts The petitioner is the President of the North Smithfield Town Council, having been elected in 1995. As part of his duties, the petitioner is expected to vote on the removal of a stipulation which limits a developer to the construction of single family homes on their property. This matter regards a subdivision that abuts the petitioner's home. However, the developer seeks to have the stipulation removed only for a lot, within the subdivision, that is more than 200 feet away from the petitioner's property. The petitioner also represents that in 1994, he approached the developer about acquiring a 2000 square foot parcel his family had used to park cars and for access. The petitioner represents that it was his belief that he could adversely possess the property because of his continuous and uninterrupted usage. The developer agreed to deed the petitioner the land for the cost of preparing the deed and filing fees. Petitioner also represents that he does not have any business interest with this developer or with his property. 2. Analysis The Rhode Island Code of Ethics provides that the petitioner should not have an interest which is substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The petitioner has a substantial conflict with the proper discharge of his duties in the public interest if he has reason to believe or expect that he will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 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. 94-42 (member must recuse himself when applicant's property is adjacent to the member's daughter); and A.O. 90-34 (member must recuse from participation where property is within 200 feet of member's investment property). See also A.O. 92-19 (concluding that a South Kingstown Town Councilor could vote on matters concerning liquor licenses in the town while her husband 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); A.O. 92-20 (Town Council member must recuse where license applicant is within close proximity of business owned by the member's brother-in-law); A.O. 96-24 (Alternate Zoning Board member must recuse himself from participation if applicant for bed and breakfast who is within 500 feet of the petitioner's business appears before him). Additionally, the Commission has required recusal where a petitioner or his family had an interest in a subdivision decision. In A.O. 92-24, the Commission concluded that a Municipal Planning Board member could not participate and vote on matters involving a subdivision to be located adjacent to the petitioner's property since the petitioner would have a direct financial interest in any official activity. See also A.O. 90-85 (Council member could not participate in matter involving subdivision of property in which her husband had an interest in real estate contiguous to the parcel under consideration); A.O. 95-83 (concluding the petitioner could participate in decisions concerning other subdivisions developed by Picerne Properties in the event his daughter subsequently purchases a home from the developer, but advising recusal if a matter would impact his daughter's financial interest in the purchased property). In summary, the Commission has found that petitioners cannot participate in subdivision decisions or other decisions affecting their own or their family's property. Here the decision is not one of subdivision, but the removal of a restriction on one lot. This lot is not adjacent to the petitioner. Given that the petitioner's property is next to the subdivision, but not adjacent to the subject lot, the Commission concludes that any impact on the petitioner's property is remote and presents no inherent conflict within the provisions of the Code. Additionally, the petitioner's previous relationship with the developer does not preclude him from participating in the decision. Section §36-14-2(8) defines "business associate" as a person joined together with another person to achieve a common financial objective. In this matter, any business relationship with the developer ended with the acquisition of the 2000 square foot parcel. See A.O. 92-94 (as business partnership had terminated, the petitioner could participate in subdivision decision, but must make public disclosure of his prior business relationship). 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 the North Smithfield Town President from participating in a decision regarding the removal of a stipulation on a lot more than 200 feet from his property. This is based on (1) the decision before the petitioner concerns only the removal of a stipulation on one lot, (2) the matter affects only a particular lot which is more than 200 feet from the petitioner's property, (3) that any business associate relationship with the developer has ended, and (4) any financial impact to the petitioner is too remote to cause a substantial conflict with the proper discharge of his duties in the public interest. Code Citations: 36-14-2(8) 36-14-5(a) 36-17-7(a) Related Advisory Opinions: 96-24 95-83 94-42 92-94 92-24 92-20 92-19 90-85 90-34 Keywords: property interest business associates