Advisory Opinion No. 97-30

Re: Brian H. McCuin

QUESTIONS PRESENTED

The Petitioner, Westerly Town Councilor, a municipal elected position, who earns a living as a real estate developer and who owns and operates residential properties in Westerly with tenants who participate in the federally funded Section VIII rental assistance program, requests an advisory opinion as to whether he may (1) participate in discussions and/or vote on appointments to the Town of Westerly Housing Authority, an independent agency that oversees Section VIII housing programs; and, (2) whether the he may participate in discussions and/or vote on the appointment his business partner to a non-compensated position on the town's Planning Board.

FACTS

1) The Petitioner is an elected member of the Westerly Town Council. He makes his living as a real estate developer, owning and operating several multi-family residential units in the Town of Westerly. Some of his tenants participate in the federally funded Section VIII rental assistance program. The program is directly administered by the Town of Westerly Housing Authority, an independent agency whose members are appointed by the Town Council. Funding for the agency comes entirely from the federal government, not from the Town of Westerly. The Petitioner presumes that at least some matters involving tenants of his, or potential tenants of his, would come before the Housing Authority during the terms of individuals who he would be involved in appointing.

2) The Petitioner is the partner in one residential real estate venture with one other individual. The individual is a potential candidate for appointment by the Town Council to a non-paying position as a member of the Town of Westerly Planning Board. The Petitioner advises that he has never had occasion to appear before the Planning Board regarding his real estate business, nor does he anticipate having occasion to do so.

SUMMARY

1) It is the opinion of the Rhode Island Ethics Commission that the petitioner, Westerly Town Solicitor, a municipal elected position, should follow the dictates of R.I. Gen. Laws § 36-14-6 and recuse from participation in the appointment process given his financial interest, providing rental units to tenants under a program administered by the Housing Authority. The Code of Ethics prohibits public officials and employees from having any financial interest that would be in substantial conflict with the proper discharge of their duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official or employee has reason to believe or expect that a conflict may exist when it is "reasonably foreseeable." Commission Regulation 6001.

2) The Code of Ethics prohibits a public official or employee from using his or her office to obtain financial gain for him or herself, for a family member, or for a business associate. The Code also prohibits action when it is reasonable to believe or expect that an official or employee, a family member, or a business associate would derive a direct monetary gain or loss by reason of some official activity. See R.I. Gen. Laws § 36-14-5(d) and 7. Here, an appointment to the Town of Westerly's Planning Board does not involve compensation and, therefore, the Code of Ethics does not prohibit the Petitioner from participating and/or voting regarding the appointment of a business partner to the that Board.

DISCUSSION

A. Housing Authority

The Code of Ethics prohibits public officials and employees from having any financial interest that would be in substantial conflict with the proper discharge of their duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official or employee has reason to believe or expect that a conflict may exist when it is "reasonably foreseeable." Commission Regulation 6001.

Here, the Petitioner is aware that matters involving tenants of his are likely to come before the Housing Authority. These matters clearly could have a financial impact on the Petitioner, particularly since the Title VIII program in the Town of Westerly has a waiting list and has limited funds to dispense for the program. In effect, the Petitioner would be voting on the appointment of someone who would have at least some responsibility for administering a program that directly affects him; i.e, the Petitioner. Given the presence of that financial interest the Petitioner should follow the dictates of R.I. Gen. Laws § 36-14-6 and recuse from participation in the appointment process.

B. Planning Board

The Code of Ethics prohibits a public official or employee from using his or her office to obtain financial gain for him or herself, for a family member, or for a business associate. The Code also prohibits action when it is reasonable to believe or expect that an official or employee, a family member, or a business associate would derive a direct monetary gain or loss by reason of some official activity. See R.I. Gen. Laws § 36-14-5(d) and 7.

The appointment at issue here, to the Town of Westerly's Planning Board, does not involve compensation. As a result, there is no potential for financial gain for either the Petitioner or his business partner. Further, the Petitioner advises that there is little, if any, likelihood that matters involving him or his business would come before the Planning Board. The Commission concludes, therefore, that the Code of Ethics does not prohibit the Petitioner from participating and/or voting regarding the appointment of a business partner to the Planning Board.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7
36-14-6001

Related Advisory Opinions:

97-13
95-26
94-60

Keywords:

business associate
business interest