Advisory Opinion No. 99-28

Re: Giorgio S. Gencarelli

QUESTION PRESENTED

The petitioner, a Westerly Zoning Board of Review member, a municipal appointed official, requests an advisory opinion as to whether he may participate in the review of an application for a special use permit submitted by his spouse's employer, Bess Eaton Donut and Flour Company.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Westerly Zoning Board of Review member, a municipal appointed official, from participating in the review of an application for a special use permit to construct a drive-thru in two new locations notwithstanding the fact that the applicant employs his spouse since the petitioner's relationship with the applicant is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), and 5(d) and there is no evidence that the construction of the drive-thrus would impact his spouse's employment.

The Bess Eaton Donut and Flour Company, which is based in Westerly, recently applied to the Westerly Zoning Board of Review for a special use permit to construct drive-thru’s at two new locations. The Bess Eaton Donut and Flour Company employs the petitioner's spouse in its bakery department.

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 duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official has 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 family member, or his employer. See R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, or an employer. See R.I. Gen. Laws § 36-14-5(d). Finally, Commission Regulation 36-14-5002 requires an official to recuse himself whenever his employer or the interest of his employer come before his Board.

After considering the relevant provisions of the Code of Ethics and past advisory opinions, we conclude that the petitioner does not have an interest in the application that would preclude his participation. Here, the applicant is the petitioner's spouse's employer. The relevant provisions of the Code, namely sections 5(a) and 5(d) and Commission Regulation 5002, do not require recusal for matter's involving a spouse's employer. Also, there is no evidence that the construction of the drive-thru’s in two new locations would impact his wife's employment. See A.O. 98-45 (advising the Administrator of the Rhode Island Division of Public Utilities and Carriers that he could participate in matters that relate to the telecommunications industry or bell Atlantic notwithstanding the fact this his spouse was employed by Bell Atlantic since there was no evidence that the matter would impact his wife's employment interest).

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)
36-14-5002

Related Advisory Opinions:

98-45
98-41
96-105
96-73
96-6
95-12

Keywords:

Business interest
Family: business interest
Family: financial benefit
Family: private employer/ment