Advisory Opinion No. 99-134

Re: Arthur C. Milot

QUESTION PRESENTED

The petitioner, a Jamestown Planning Commission member, a municipal appointed position, requests an advisory opinion as to whether he may participate and/or vote on a petition to eliminate actions that would lead to off-site parking given that his daughter is one of the petitioners.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Jamestown Planning Commission member, a municipal appointed position, from participating in the discussion and/or vote on a petition presented by his daughter since there is no indication that the petition would have a financial effect on his daughter or himself.

The petitioner states that the petition under consideration was presented by three citizens, one of whom is his daughter. The petition concerns the elimination of off-site parking. While this petition was prompted by a particular 1994 marina expansion, it could impact other business expansions. The petitioner states that neither he nor his daughter live near the current proposed off-site parking. Additionally, both the petitioner and his daughter have boats moored in the harbor.

Pursuant to the Code of Ethics, the petitioner 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. A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d).

Here, the parking ban has no discernable impact on the petitioner or his daughter. Neither he nor his daughter live near the current off-site parking property, but there is a potential that he, or for that matter, anyone else on the Planning Commission, could live next to such a facility in the future. Additionally, both the petitioner and his daughter have boats in the harbor. However, the potential for a benefit or detriment affecting the petitioner or his daughter, and thereby constituting a substantial interest under the law, is too remote and speculative to trigger prohibitions under the Code of Ethics. As such, while his daughter is the petitioner in the current matter that normally would raise conflict of interest issues because of a financial impact, none are present here. We note that persons may believe that the petitioner should not participate in this matter due to his daughter’s participation. However, while the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety, it did not make the appearance of impropriety a violation of the law. Therefore, if, in a particular situation the petitioner believes his participating would create an appearance of impropriety, he may, although he is not required to do so, recuse.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

97-10

Keywords:

Nepotism