Advisory Opinion No. 98-147 Re: Daniel J. O’Brien A. QUESTION PRESENTED The Petitioner, a North Smithfield Town Councilor, a municipal elected official, requests an advisory opinion as to whether he may participate in the Council's consideration of whether a Dunkin Donuts franchise has complied with certain Zoning Board stipulations regarding the use of a drive-thru given that he owns property approximately four hundred (400') feet from the business. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a North Smithfield Town Councilor, a municipal elected official, from participating in proceedings regarding whether a Dunkin Donuts franchise that is located within four hundred feet of his property has complied with Zoning Board restrictions. Previous opinions of the Commission have required public officials to recuse from matters involving property that, although not abutting, is located near the subject property and would be affected financially by the underlying petition or application. Whether or not a particular matter would result in a financial impact on neighboring properties depends on facts such as the nature of the public action requested and the specific locations of the properties in relation to each other. Here, the Petitioner's property is located approximately four hundred feet from the franchise and there is no indication that his property would be impacted financially by the Council's investigation of whether the franchise has complied with zoning restrictions. Accordingly, he need not exercise the recusal provisions set forth in R.I. Gen. Laws § 36-14-6. C. DISCUSSION 1. Facts Approximately three years ago, Daniel Delprete petitioned the North Smithfield Zoning Board for a permit to construct a Dunkin Donuts franchise at the corner of Homecrest Avenue and Victory Highway. Within his application, Mr. Delprete proposed constructing a drive-thru to accompany the franchise. The Petitioner, who resides approximately four hundred (400') from the proposed establishment, spoke in opposition to the petition. (In 1996, following construction of the donut shop, the Petitioner also complained to the Town Council about traffic problems and parking problems on Victory Highway and Homecrest Avenue. The Town Administrator eventually installed "No Parking" signs on Homecrest Avenue and requested the Department of Transportation to install the same on Victory Highway.) The Zoning Board ultimately approved the petition with a number of stipulations, one of which limited the use of Homecrest Avenue for the drive-thru to ingress. In November 1997, the voters of North Smithfield elected the Petitioner to the Town Council. After assuming this position, the Petitioner spoke with the Chief of the North Smithfield Police Department about the traffic situation on Homecrest Avenue. In August 1998, the Petitioner addressed the Town Council about the traffic situation on Homecrest Avenue and whether the franchise had complied with the Zoning Board's stipulation regarding limiting the use of Homecrest Avenue to ingress. Following this discussion, the Town Council requested Mr. Delprete to appear before the Council. At a Town Council meeting on September 8, 1998, the Petitioner advised the Council that he opposed the use of Homecrest Avenue as an entry point for the drive-thru. The Petitioner then requested Mr. Delprete to assess the situation. In response, Mr. Delprete requested that the Petitioner recuse himself from the matter since he believed that the Petitioner had a conflict of interest since he is a resident of Homecrest Avenue who has opposed the drive-thru. The Petitioner now seeks guidance as to whether he may participate in the Town Council's investigation of whether the franchise has complied with local zoning specifications. 2. Analysis Under the Code of Ethics, a public official 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 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. 98-56 (advising a member of the Little Compton Agricultural Conservancy Trust that he could not participate in the Trust's consideration of an application to transfer certain development rights of a tract of land approximately 223 acres where he owns property abutting the property at issue since the matter would likely impact the value of this property); 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. See A.O. 98-57 (opining that the Code of Ethics does not prohibit a member of the Smithfield Zoning Board from participating in proceedings regarding the reconsideration of a petition for a Special Use Permit for the development of a public park and playground where her daughter and son-in-law, although not abutters, lived near the proposed park since there was no evidence that their property would be impacted financially by the matter under consideration). 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 the subdivision). 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 Council's consideration of whether the Dunkin Donuts franchise has complied with local zoning specifications. This decision is based on the Petitioner's representations that he is not an abutter to the property at issue. His property is located approximately four hundred feet from the franchise at issue, which was constructed in a pre-existing commercial area. Also, there is no evidence that the Council's consideration of this issue foreseeably could impact the Petitioner's property values, thereby triggering the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a). As such, he is not required to exercise the notice and recusal provisions set forth in R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-6 36-14-7(a) Related Advisory Opinions: 98-102 98-66 98-19 98-57 98-56 96-63 95-27 94-42 90-85 90-34 Keywords: Property interest