Advisory Opinion No. 99-31

Re: Michael R. McGuinn

QUESTION PRESENTED

The petitioner, a Smithfield Town Councilor, a municipal elected official, requests an advisory opinion as to whether he may participate and vote on the Town Council’s consideration of a lawsuit involving both the Town and residents of the Connors Farm subdivision, given that he previously had been a member of the lawsuit.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Smithfield Town Councilor, a municipal elected official, may not participate and vote on the Town Council’s consideration of a lawsuit involving the Town and residents of the Connors Farm subdivision since any action taken by the Council on the matter may have a financial impact upon his own property as a Connors Farm resident.

The petitioner advises that residents of Connors Farm, a 42-lot subdivision in Smithfield, are involved in a lawsuit with the Town and the developer. He resides in Connors Farm and previously had been a member of the suit. He represents that he withdrew from the suit upon his election to the Town Council in November of 1998. He indicates that a recent court ruling, which is being appealed, eliminated the Town from the suit. The developer and the Connors Farm residents have requested that the Council provide incentives for settling the suit. He further advises that the Council may consider a proposal whereby the Town would agree to repave Connors Farm’s roads if the developer installs a new water pump for the subdivision.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. A public official has a substantial conflict of interest if he or she has reason to believe or expect that he or she will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, he 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 a business associate. See R.I. Gen. Laws § 36-14-5(d).

The Commission consistently has found that public officials may not participate in subdivision decisions or other decisions affecting the official’s property or a family member’s property. See A.O. 97-63 (finding that an Exeter Planning Board Member should not participate in matters involving a proposed combined preliminary and final plan for the development of a subdivision given that he resides within 1,000’ of the development); A.O. 92-24 (concluding that a Municipal Planning Board member should not participate and vote on matters involving a subdivision to be located adjacent to his property since he would have a direct financial interest in any official activity); A.O. 90-85 (opining that a Town Councilor should not participate in matter involving subdivision of property where her husband had an interest in real estate contiguous to the parcel under consideration).

In Advisory Opinion 95-25, the Commission determined that a Westerly Town Councilor could participate and vote in matters relating to litigation between the Town and the Weekapaug Fire District, concerning a dispute over ownership of a “sand trail” on Weekapaug Beach, despite the fact that there existed a remote possibility that his property value could be affected by the resolution of the law suit. However, that decision was based on the fact that the Councilor’s property was located three miles from the subject property and scores of other property owners likewise would be affected. In the instant advisory request, the Council’s consideration of the litigation may directly financially impact the petitioner’s property, thus triggering the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a).

The Commission concludes that the petitioner may not participate in the Town Council’s consideration of any matters involving the Connors Farm litigation. Although he withdrew from the lawsuit, the petitioner still has reason to believe or expect that he will derive a direct monetary benefit (or suffer a loss) as a result of the litigation and/or any potential settlement. The Council’s discussion or vote regarding the issue ultimately could impact the litigation’s outcome. The petitioner advises that the Council may consider a settlement proposal whereby the Town would repave the subdivision’s roads if the developer installs a new water pump. Such a proposal would benefit all residents of Connors Farms, including the petitioner. Accordingly, he should recuse himself from participation in all matters related to the Connors Farm litigation. Notice of recusal should be filed with both the Ethics Commission and the Town in accordance with R.I. Gen. Laws § 36-14-6. Finally, pursuant to Commission Regulation 36-14-7003, the public forum exception, the petitioner may express his own viewpoints on the Connors Farm matter before the Council in his capacity as a private citizen.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-7003

Related Advisory Opinions:

98-56
98-28
98-84
98-167
97-63
96-63
95-61
95-27
95-25
94-26
92-24
91-75
90-85
90-34

Keywords:

Litigation
Property interest
Public form exception
Recusal