Advisory Opinion No. 98-1

Re: Kenneth L. Fernstrom


The Petitioner, the President of the Exeter Town Council, a municipal elected official, requests an advisory opinion as to whether he may participate in the review of Bald Hill Nursery's (Nursery) petition for a zoning change and request for a change of the Town's Comprehensive Plan where the Petitioner operates a roadside hotdog stand on the grounds of the Nursery.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner from participating in matters involving the Nursery since his employment/business interests in the property trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(b).


1. Facts

For the past two years, with permission of the owners of the Bald Hill Nursery, the Respondent has operated a small hotdog stand near Route 102 on the grounds of the Nursery. (Before the Nursery gave him permission to locate on its property, the Petitioner operated his stand a short distance up the road on State property. An official from the State required him to vacate this location. The Petitioner claims that he primarily operates the stand to "keep active" and in touch with the residents of Exeter.) The Respondent does not pay rent for the use of this property or share any of his profits with the Nursery.

The owners of Bald Hill Nursery have petitioned the Town for a zoning change and a change of the Town's Comprehensive Plan. The Petitioner now seeks guidance as to whether, given his relationship with the Nursery, he can participate in the Council's consideration of the Nursery's request.

2. Analysis

Under the Code of Ethics, the Petitioner, as the President of the Exeter Town Council, 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Section 5(b) of the Code also prohibits the Petitioner from accepting other employment that would impair his independence of judgment or require him to disclose confidential information acquired by him in the course of his official duties.

After considering the Petitioner's request and the relevant provisions of the Code, namely sections 5(a) and 5(b), we conclude that the Code of Ethics prohibits the Petitioner from participating in any discussions or decisions relating to the applications/petitions filed by the Nursery. In past opinions, we have routinely required an official to recuse himself from any matter in which he has a business or financial interest or which involves the financial interests of a business associate. (R.I. Gen. Laws § 36-14-2(8) defines business associates as any individuals "joined together . . . to achieve a common financial objective." Here, the Petitioner and the Nursery do not appear to be business associates as the term is defined in section 2(8) since they do not exchange money or services for the use of the property.) See A.O. 93-14 (concluding that a Coventry Town Councilor could not participate and vote on matters involving a proposal to build a supermarket-shopping plaza given that this private business had a contract for the sale and distribution of bakery items with the supermarket). Cf. A.O. 97-103 (opining that a Westerly Town Councilor, who was also a self-employed builder/real estate developer, could not participate in discussion, deliberations and voting on an ordinance regulating the Bed and Breakfast industry where the Petitioner had a close and dependent business relationship with a loan officer that would be affected by the ordinance); A.O. 95-49 (concluding that a member of the Portsmouth Water and Fire District Board could not participate or vote in the selection of an accounting firm where one of the partners in the accounting firm provided the board member with the use of a boat slip since the use of the boat slip had more than nominal value).

Here, the Petitioner, who operates a hotdog stand at the Nursery, has a financial interest in the subject property. This business interest will be affected by the zoning applications since it will impact whether he may continue to operate his business at its present location and/or enhance his vending business on the property. Also, given this employment interest, his independence of judgment regarding the applications at issue may be impaired. Accordingly, the Petitioner must recuse himself from any matter involving the Nursery's applications/petitions and file the appropriate Conflict of Interest Statements as specified in R.I. Gen. Laws § 36-14-6.

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