Advisory Opinion No. 98-128

Re: Charles B. Allott, Esq.

QUESTION PRESENTED

The Petitioner, a Portsmouth Zoning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Board’s consideration of a development proposal when both he and proposal’s presenter are candidates for an at-large seat on the Portsmouth Town Council, a municipal elected position.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that a Portsmouth Zoning Board member, a municipal appointed position, may participate in the Board’s consideration of a development proposal when both he and proposal’s presenter are candidates for an at-large seat on the Portsmouth Town Council, a municipal elected position. The Petitioner and the developer are political opponents. The Petitioner has no financial interest in his opponent’s development proposal and it is difficult to see how either a positive or an adverse vote by the Petitioner on the proposal could impact his own private financial interests. Whether and to what extent the Petitioner’s vote, again be it positive or adverse, would affect the election he and the developer are contesting is not certain.

Based on recent decisions of the Supreme Court (see Town of Lincoln v. Lincoln Lodge No. 22, 660 A. 2d 710 (R.I. 1995) and of the Superior Court (see, e.g., Richard A. Licht v. Rhode Island Ethics Commission , Superior Court, slip. op. March 9, 1998, Rodgers, P.J.), the uncertainty of the affect on the Petitioner’s financial interests is dispositive. The courts have held that action by a public official must be of such as substantial nature as to result in the type of direct monetary gain or loss prohibited by the Code of Ethics. And, the direct monetary gain or loss must involve the official, a family member or a business associate. The fact that the official’s action might adversely affect the interests of a political opponent falls outside the prohibitions of the law even though the rationale for concluding that an official has a political conflict of interest is basic and clear cut.

Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The law defines “substantial conflict” as when a public official has reason to believe or expect that he or she (or a family member, business associate, or employer) will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws § 36-14-7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or employment. R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself, for a family member or business associate, or for any business that he represents. R.I. Gen. Laws § 36-14-5(d). As discussed above, the uncertainty of the financial effect that the Petitioner’s action would have on him, a family member or a business associate takes his actions outside the prohibitions of the Code of Ethics.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Keywords:

Business interest

Private employment