Advisory Opinion No. 99-124

Re: Thomas Ricci

QUESTION PRESENTED

The legal counsel for the Division of Motor Vehicles on behalf of the petitioner, a Motor Vehicles Dealer's License and Hearing Board member, a state appointed position, requests an advisory opinion as to the proper course to follow given that the petitioner will recuse himself on a matter concerning the establishment of a new dealership because he is the owner of another dealership that is protesting the new Chevrolet dealership.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Motor Vehicles Dealer's License and Hearing Board member, a state appointed position, should continue to recuse from participation and complete a recusal form regarding the establishment of the potentially competing Chevrolet dealership. However, the petitioner may participate in public forums or speak at a Board hearing as a member of the public and/or an affected dealer regarding the establishment of a new dealership in his area. See Commission Regulation 36-14-7003 (Public Forum Exception)

The legal counsel for the Department of Motor Vehicles states that a matter concerning the establishment of a new Chevrolet Dealership will be heard by the Motor Vehicles Dealer’s License and Hearing Board. The petitioner, a member of that Board, owns Norwood Motor Group, Inc., d/b/a Norwood Chevrolet. A representative of the Norwood Motor Group sent a letter to the Department of Administration protesting the establishment of a Chevrolet dealership at 870 Quaker Lane, Route 2 in Warwick. Given the petitioner’s interest, he will recuse from participation as a Board member in this matter. However, the petitioner asks the proper procedures to follow.

When recusing, the petitioner should not participate in any discussion or vote as a member of the Board. In addition, the petitioner is required to complete and lodge with his Board a recusal form, sending a copy to the Ethics Commission in accordance with R.I. Gen Laws § 36-14-6. We note that if the matter is discussed in executive session, the petitioner should absent himself for that discussion. Given his recusal, he becomes a member of the public and, therefore, would not have access to that executive session discussion. However, the petitioner may participate in public forums or speak at a Board hearing as a member of the public and/or an affected dealer regarding the establishment of a new dealership in his area. Commission Regulation 36-14-7003, the Public Forum Exception, provides that any person may publicly express his or her viewpoint in a public forum on any matter of general public interest or on any matter that directly affects said individual.

A second issue relates to the express language of R.I. Gen. Laws § 36-14-5(e), which indicates that the petitioner would be prohibited from appearing on any matter before the Board (i.e., the public body on which he serves). Interpreted literally, and without the context that Commission Regulation 36-14-7003 provides, Section 5(e) could be construed as barring even participation in public discussions by the petitioner. We conclude, however, that the public forum exception is the more reasonable rule to apply and that it provides a reasonable exception to Section 5(e)'s strict prohibitions. In addition, Section 5(e) provides for a hardship exception upon a finding of such by the Commission. Given the petitioner's interest in the establishment of a new Chevrolet dealership, we believe that he may speak on the issue before the Board and in other public forums and that any such involvement falls within the hardship exception. See A.O. 99-30 (allowing A Town Councilor to participate in public forums or speak at a Council hearing as a retired employee regarding the future of the pension system if he recuses himself from the Council's considerations and/or votes regarding this issue); A.O. 97-85 (permitting the Central Falls City Solicitor to testify at a State Liquor Control appeal hearing or at a Central Falls Liquor Board hearing regarding the revocation of a license of a bar located adjacent to his private law offices since the matter fell within the hardship and public forum exceptions). Also, this opinion is consistent with previous advisory opinions that have permitted public officials to appear before boards where they have a vested property right, notwithstanding the fact an appearance before a particular board may constitute a conflict of interest. See e.g., A.O. 98-12. However, we caution the petitioner that he should not improperly use his position as a Board member to influence any other Board members or employees regarding the matter in which he has an interest. See R.I. Gen. Laws § 36-14-5(d).

Code Citations:

36-14-5(d)

36-14-5(e)

36-14-7003

Related Advisory Opinions:

99-30

98-52

98-12

97-85

96-111

96-108

96-75

95-65

Keywords:

Competitors

Public Forum Exception