Advisory Opinion No. 99-99

Re: Edward J. Magill

QUESTION PRESENTED

The petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in a hearing and decision(s) regarding a proposed 28 lot subdivision in the Town given that his daughter owns land that directly abuts the proposed project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Smithfield Planning Board member, a municipal appointed position, may not participate in decisions regarding a proposed subdivision in the Town given that his daughter owns land abutting the project. The Code of Ethics provides that a public official may not participate in any official action when he or she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his or her duties or employment in the public interest. A substantial conflict includes potential financial benefit for the official, a family member, or a business associate. R.I. Gen. Laws § 36-14-5(a). Public officials also are prohibited from using their positions or confidential information received though their positions to obtain financial gain, other than that provided by law, for himself or any person within his family. See R.I. Gen. Laws § 36-14-5(d). In previous advisory opinions the Commission has concluded that town officials should not participate and vote on matters involving subdivisions to be located adjacent to their property since they would have a direct financial interest in any official activity affecting the subdivision. See, e.g., A.O. 92-24, A.O. 90-85, A.O. 97-63.

The Commission has expanded its analysis to include participating in subdivision matters where a family member is an abutter. Commission Regulation 5005 includes within its definition of family members adult children. See A.O. 97-76 (advising Coventry Planning Commission member that she should not participate in matters relating to a proposed subdivision given that her brother was an abutter to the project) and A.O. 98-39 (concluding that Coventry Town Solicitor should not advise Council involving parcels that are adjacent to land owned by a corporation in which his brother-in-law has a substantial interest). The same analysis applies here as well given the nature of the public action requested and the specific locations of the properties in relation to each other. Absent some evidence that action by the Planning Board regarding the proposed subdivision would not affect the financial interests of the petitioner's daughter as an abutter, the petitioner should not participate in any decisions regarding the subdivision. He is not precluded, however, from participating in policy discussions or decisions regarding planning issues generally, even though such decisions may impact all proposed subdivisions, including the one at issue here. Whenever a matter comes before the North Smithfield Planning Board involving this particular subdivision, the petitioner should (a) notify the Planning Board, in writing, of the nature of his interest in the matter at issue; and (b) recuse herself from any votes or discussions relating to this matter. The petitioner should also comply with the filing requirements set forth in R.I. Gen. Laws § 36-14-6.

Code Citations:

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

Related Advisory Opinions:

98-39
98-56
98-84
97-63
97-76
95-27
93-43
92-24
90-85

Keywords:

Family: Property interest