Advisory Opinion No. 99-34

Re: Henry Giammarco

QUESTION PRESENTED

The Town Solicitor for the Town of North Providence requests an advisory opinion on behalf of the petitioner, a North Providence Zoning Board of Review member, a municipal appointed position, as to whether he may 1) participate and vote on a zoning application where he had previously considered purchasing the same property; 2) participate and vote on an application concerning land that abuts another parcel on which are located businesses owned and operated by his second cousin and his second cousin's wife assuming a) it is clear that granting the application will have an adverse effect on the second cousin's business or b) it is unclear that granting the application will have an adverse affect on his second cousin's business.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Providence Zoning Board of Review member, a municipal appointed position, 1) may participate and vote on a zoning application where he previously had considered purchasing the same property; 2) may participate and vote on an application concerning land that abuts another parcel on which are located businesses owned and operated by his second cousin and his second cousin's wife, absent some other relationship, since they are not considered family members for purposes of the Code of Ethics.

The Town Solicitor, on behalf of the petitioner, represents that the application for relief now pending before the North Providence Zoning Board of Review concerns property adjacent to a lot on which are located businesses owned and operated by his second cousin and his second cousin's wife (a deli and hair salon) and a third party tenant. {Note: although the initial request identified the relatives as the petitioner's nephew and his wife, this was an error. They are actually the petitioner's second cousin and his second cousin's wife.] The applicant for the relief is the landlord of the petitioner's second cousin and his second cousin's wife as to that lot. The request for relief concerns four lots. The four parcels were administratively subdivided into two lots. Now pending is a request for relief from zoning restrictions that only allow residences to be built on 10,000 square foot lots given that the current parcels are only 8,000 square feet. Additionally, the petitioner previously considered purchasing the property and has not disclosed his reasons for declining to purchase the property.

Under the Code of Ethics, the petitioner, as a North Providence Zoning Board member, 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 will have an interest in substantial conflict with his official duties if he/she has a reason to believe or expect 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, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

The first issue presented by the petitioner concerns his ability to hear the application since he previously expressed interest in purchasing the subject property. We have previously advised officials that they may participate in matters where there is not any current negotiation for purchase of property. See A.O. 98-53 (advising Town Councilor that she may participate in the consideration of a zoning change for a developer where she and a private client met with the developer about the proposed unit, but where there are no active negotiations for the particular property at issue); A.O. 97-8 (finding that a Narragansett Town Councilor could participate in a matter for the same developer with whom he had discussed the purchase of property, but where there were no active negotiations). Similarly, the Commission has advised petitioners that they may not participate in matters where he/she is the intended purchaser of the subject property. See A.O. 98-18 (concluding Zoning Board member should recuse himself from participating and voting on a petition by the American Legion, Post No. 15 regarding the conveyance of a land parcel, given that the Petitioner is the intended purchaser of said parcel). See A.O. 96-61 (advising a City Councilor to recuse himself from any participation in the consideration of a night club owner's entertainment license where the Councilor is the real estate broker for adjacent property and the night club owner is the prospective purchaser of that property). Here, the petitioner at one time was interested in purchasing the property, which was subsequently purchased by the applicant. Without any additional facts, the petitioner's past interest does not create an impermissible conflict under the Code of Ethics.

The second issue concerns whether the petitioner may participate in the zoning hearing given that family members own and operate businesses abutting the subject property which is owned by their landlord. Commission Regulation 36-14-5005 includes relatives, specifically first cousins whether by blood, marriage, or adoption as members of one's family. Therefore, the petitioner's second cousin and his second cousin's wife are not considered family members under the Code of Ethics. Therefore, unless the petitioner has some other relationship with his second cousin, i.e. business associate, he may participate in the zoning application that is the subject of this advisory opinion.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5005

Related Advisory Opinions:

96-61
97-8
98-18
98-53

Keywords:

Nepotism
Property interest