Advisory Opinion No. 98-167

Re: Paul F. Caranci

QUESTION PRESENTED

The petitioner, a North Providence Town Councilor, a municipal elected official, requests an advisory opinion as to whether he may participate in the Council’s consideration of an establishment’s liquor license given that he resides approximately 180 feet from the business and has filed complaints concerning disturbances there.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a North Providence Town Councilor, a municipal elected official, from participating in the Council’s consideration of an establishment’s liquor license, despite the fact that the business is located approximately 180 feet from his residence and that he has filed complaints alleging disturbances there. The Commission reaches its conclusion based upon the petitioner’s specific representations that the Council’s action on the matter will not financially impact his property.

On December 1, 1998, the Town Council will consider whether to revoke Billy’s Pub, Inc.’s (d.b.a. “Jam-In Bar & Grille”) liquor license and/or to fine the business. The petitioner represents that he resides approximately 180 feet from the establishment. Since he resides within 200 feet of the establishment, he is deemed an abutting property owner for zoning matters. However, he indicates that he is not an abutter for liquor licensing purposes since his property is located more than 200 feet away from Billy’s Pub, Inc.’s door. The petitioner specifically represents that the Council’s action on the matter will have no financial impact upon his property since the area is zoned for mixed commercial/residential use. He has offered to provide, if deemed necessary by the Commission, a realtor’s statement supporting his claim that the value of his property would not be impacted by a decision to revoke the liquor license for the existing business. Further, he advises that he has filed police reports, at the request of his constituents, complaining of noise and disturbances at the establishment.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that 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, a business associate, or a family member. See R.I. Gen. Laws § 36-14-7(a).

Previous opinions of the Commission have required public officials to recuse themselves from matters involving property that, although not abutting, is located near the their own property, inferring that the latter would be financially affected 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). 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.

However, the Commission has determined that an official did not have a conflict of interest where there was no clear evidence to show that the official’s 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 feet 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, although the petitioner is an abutter to the property at issue for zoning purposes, he represents that he is not an abutter for liquor licensing purposes since he resides more than 200 feet from the door of Bill’s Pub, Inc. Given the establishment’s proximity to his residence, it may be argued that any action the Council may take regarding its liquor license may financially impact the petitioner’s property, thereby triggering the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a). However, based upon the petitioner’s specific representations that the Council’s decision will not impact his property, the Commission concludes that the petitioner need not recuse from participation in the matter. The fact that the petitioner has filed complaints, on behalf of his constituents, regarding disturbances at the establishment does not implicate provisions of the Code of Ethics.

Code Citations:

36-14-5(a)

36-14-6

36-14-7(a)

Related Advisory Opinions:

98-147

98-102

98-66

98-57

98-35

98-19

96-63

95-27

94-42

90-85

90-34

Keywords:

Property interest