Advisory Opinion No. 98-58

Re: Christopher P. Morra

A. QUESTION PRESENTED

The Petitioner, East Providence Zoning Board of Review (Zoning Board) member, a municipal appointed position, requests an advisory opinion as to whether he may participate in a variance from height and set-back requirements given that his private residence is located within 200 feet of the subject property.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the member of the East Providence Zoning Board from participating in proceedings regarding the subject variance request since there is not sufficient evidence that the Petitioner's property would be impacted financially by the matter under consideration. See R. I. Gen. Laws § 36-14-5(a).

C. DISCUSSION

1. Facts

The Petitioner is a member of the East Providence Zoning Board of Review ("Zoning Board"). The Zoning Board has before it a dimensional variance for 3 Bridgham Court. The house to be constructed would exceed the height variance by 5 feet 9 inches and setback by 5 feet. It is not directly adjacent, but is in the proximity of the Petitioner's private residence and a historic house and barn that he owns. The Petitioner states that he does not believe that the variance will impact his property, but does not provide any evidence in support of that contention. It is scheduled for hearing on April 29, 1998.

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 or her 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 or a business associate. 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 consideration of 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).

However, if the decision was not one that would impact the public official, recusal was not necessary. See 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 that was more than 200' from his property since there was no evidence that the Petitioner's property would be impacted financially by the decision). See also A.O. 98-19 and A.O. 98-35.

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 the subject variance. This decision is based on the Petitioner's representations that he does not believe that the variance decision will impact his property. Also, there is no evidence that the Zoning Board's decision 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 himself from this matter under the provisions of R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-6

36-14-7(a)

Related Advisory Opinions:

98-19

98-35

96-63

95-27

90-85

90-34

Keywords:

Property interest