Advisory Opinion No. 98-57

Re: Re: Doris Scotti


The Smithfield Zoning Board of Review (Zoning Board) Chairperson requests an advisory opinion on behalf of the Petitioner, a Zoning Board member, a municipal appointed official, as to whether that member may participate in the reconsideration of a petition for a Special Use Permit for the development of a public park and playground at Deerfield Park if her daughter and son-in-law, although not abutters, live near the proposed park.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the member of the Zoning Board from participating in proceedings regarding the reconsideration of a petition for a Special Use Permit since there is no indication that the property of the official's family member would be impacted financially by the matter under consideration.


1. Facts

On June 22, 1997, the Zoning Board granted the Town of Smithfield a Special Use Permit to open Deerfield Park as a public park and playground. As a condition to the Permit, the Zoning Board required the Town to construct a third access road to the park.

After researching the issue, the Town determined that it would have to pay, depending on which route the Town chose, between $150,000 and $700,000 to construct a new access road. Because of this expense, the Town Council requested that the Town Engineer conduct a study to determine if the traffic generated by the park would reduce the level of service to the motoring public in the area. The Town Engineer concluded that the park traffic would not change the level of service at any surrounding intersection except at Deerfield Drive and Pleasant View Avenue where "the level or service would be reduced from B to C."

On September 2, 1997, the Town Council held a public hearing on the issue of whether it should request the Zoning Board to drop its requirement regarding the construction of an additional access road. At this hearing, residents from Deerfield Drive, both abutters and individuals who reside outside of the 200' radius, argued that the Town should construct the third access road to reduce the traffic on their street. The son-in-law of a member of the Zoning Board who lives near but does not abut the proposed park, testified in support of the road. At the conclusion of the public hearing, the Town Council approved a request that the Zoning Board reconsider the requirement in the petition regarding the third access road.

On October 29, 1997, the Zoning Board held a hearing on the Town Council's request for a modification of the Special Use Permit (dropping the requirement for a third access road), at which time the Zoning Board member's son-in-law spoke in opposition to the Town Council's petition. At the conclusion of this hearing, three members of the Zoning Board voted in favor of and two members (including the Petitioner) voted in opposition to eliminating the requirement for the additional access road. The Town Charter requires four affirmative votes in order to approve the type of modified Special Use Permit requested here. Therefore, despite the three-to-two majority, the reconsideration failed.

On December 17, 1997, the Zoning Board voted unanimously (with the Petitioner participating) to seek an advisory opinion as to whether the Petitioner should recuse herself if the Town Council requests that the Zoning Board again reconsider its ruling regarding the third access road.

2. Analysis

Under the Code of Ethics, a member of the Zoning Board may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her 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 or a family member. See R.I. Gen. Laws § 36-14-7(a).

In past opinions, we have found a substantial conflict necessitating recusal to exist in situations where the official (or a family member) owns property that abuts the subject property. See, e.g., A.O. 95-27 (concluding that, because on his status as an abutting property owner, a member of a Zoning Board should recuse himself from a petition for a zoning change of a parcel of land since his personal vested property rights could be affected by the decision); A.O. 90-85 (concluding that a member of the East Greenwich Town Council should not participate in a matter involving a subdivision of property since her husband had an interest in real estate contiguous to the parcel under consideration); A.O. 90-34 (opining that a member of the Conservation Commission should not participate in proceedings concerning a request for a zone change of property abutting the Kickemuit River since she owned investment property located within 200' of the property affected by the zoning change).

We also have found such a conflict to exist in situations where the official, although not an abutter, owns property that would be affected financially by the underlying petition or application. See A.O. 94-42 (requiring a member the Bristol Planning Board to recuse himself from a request for a zone change of property since his daughter owned a condominium near, but not abutting the subject property, that would be impacted financially by the zone change). However, the Commission has determined that the official did not have a conflict of interest if there is no clear evidence to show that the official or family member's property would be impacted financially by the decision. C.f. A.O. 96-63 (concluding that a member of the North Smithfield Town Council, technically an abutter, could participate in a decision regarding the removal of a stipulation on a lot within the subdivision more than 200' from his property since there was no evidence that the Petitioner's property would be impacted financially by the decision to create a substantial conflict).

Here, after considering the relevant provisions of the Code and the past advisory opinions, we conclude that the Code of Ethics does not prohibit the Petitioner from participating in any future proceedings regarding the Petition for a Special Use Permit. This decision is based on the Petitioner's representations that the Petitioner's family members are not abutters to the property at issue. Also, there is no evidence that the decision of whether to construct the third access road would have a financial impact on her family's property that would trigger the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a). As such, there is no need for the Petitioner to recuse herself from this matter under the provisions of R.I. Gen. Laws § 36-14-6.

Code Citations:




Related Advisory Opinions:







Family: property interest

Property interest