Advisory Opinion No. 98-28

Re: John Caparco

QUESTION PRESENTED

The Petitioner, a Bonnet Shores Fire District Council member, a regional elected position, requests an advisory opinion as to whether he may participate in Council discussions and votes concerning the building of a beach access walkway across the street from his home.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Bonnet Shores Fire District Council (Council) member, a regional elected position, may participate in Council discussions and votes concerning the building of a beach access walkway across the street from his home. The Petitioner represents that he lives across the street from a path to Kelly's Beach. The Fire District has proposed building an aboveground walkway at this location for approximately $50,000. The Petitioner, prior to being elected to the Council, formed a committee to find alternatives to the proposed walkway. The Committee has advocated for a less expensive walkway (approximately $6,000-8,000).

Under the Code of Ethics, a public official has a substantial conflict of interest if he or she can reasonably expect that his or her official action will result in a monetary gain or loss for him or her. See R.I. Gen. Laws § 36-14-5(a), 7(a). The Commission in previous decisions has concluded that certain abutters would be directly impacted financially by matters relating to neighboring properties. In such instances, public officials were advised to recuse when the matters at issue came before them. Those decisions generally have concerned subdivision approvals. However, the Commission also has concluded that other zoning decisions did not directly impact abutters. See A.O. 96-63 and A.O. 98-19. Additionally, the Commission has allowed public officials to participate in matters affecting areas where they owned property because the possibility of particular financial impact on the officials was too remote. See A.O. 93-43 and A.O. 95-25.

Here, the Petitioner represents that the building of a walkway, whether the more or less expensive version, will not impact his property’s value. Also, no evidence suggests that the construction of a walkway across the street from his home, where a crude path currently exists, will financially impact his property. Therefore, the Petitioner may participate fully as a Council member on the walkway matter unless and until consideration of the walkway issues lapse into areas that could impact his financial interests. Finally, even if the Petitioner were to recuse from participation as a Council member in this matter, he retains his First Amendment rights as a citizen to speak on the issue. Under Commission Regulation 36-14-7003, the Public Forum Exception, public officials may publicly express their own viewpoints in a public forum, such as a Fire District Council meeting, on any matter of general public interest or on any matter which directly affects the official, their spouse or a dependent child.

Code Citations:

36-14-5(a)

36-14-7(a)

36-14-6

Commission Regulation 36-14-7003

Related Advisory Opinions:

98-19

97-63

96-11

96-108

95-100

95-27

95-25

93-43

90-85

90-34

Keywords:

Property interest

Public forum exception