Advisory Opinion No. 96-70

Re: Richard Sardella

QUESTION PRESENTED

Whether an elected member of the Newport City Council and the Board of License Commissioners may participate and vote on matters relating to restaurant and bar issues when the member also owns a restaurant holding a liquor license.

RESPONSE

At issue in this advisory opinion request is whether the petitioner, an elected Newport City Council and Board of License Commissioners member, may participate and vote in matters before both the City Council and the Board of License Commissioners involving restaurant and bar issues. The petitioner represents that the City Council considers zoning matters and that the Board of License Commissioners hears matters involving licensing including transfers and violations of licenses. 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. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Additionally, the Code provides that the petitioner shall not use his office to obtain financial gain other than as provided by law. R.I. Gen. Laws § 36-14-5(d).

In a recent advisory opinion, the Commission considered whether a Newport Zoning Board member could participate in matters affecting the bed and breakfast and restaurant industries given that he owns a hotel (and was recusing on any other hotel issue) and is a landlord of a restaurant/bar and provided that the petitioner must recuse himself in a matter where he has a direct interest or the applicant is within 500 feet of his businesses. A.O. 96-24 Previous opinions by the Commission required recusal based on substantial conflicts 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. 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. Additionally, the Commission has found that a Councilor could not participate in matters directly impacting on the Councilor's employer. Similarly, the Commission has found substantial conflicts when a Councilor participates in matters involving the new regulation of an industry. For example, 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. Sardella, a member of the Newport City Council and its Board of License Commissioners, from participating in zoning or licensing decisions that do not directly impact him. The petitioner may not be affected by zoning decisions with regard to other restaurants or bars 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 restaurants and bars within a close proximity or those in competition with him because of the nature of his business. Therefore, when an issue comes before the petitioner regarding the zoning or licensing of other restaurants and bars and the business is in close proximity to or otherwise directly impacts the petitioner's business, the petitioner must 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)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

96-24

94-42

94-24

92-65

92-20

92-19

91-41

90-57

Keywords:

business interest

competitor(s)

recusal