Advisory Opinion No. 2007-58 Re: Stephen Hughes QUESTION PRESENTED: The petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, requests an advisory opinion as to whether he is prohibited from participating in a review of proposed amendments to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club (“the Yacht Club”), given that he is both a general member and a member of the Board of Directors of the Yacht Club. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, is prohibited from participating in the Planning Board’s review of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club (“the Yacht Club”), given that he is a member of the Board of Directors of the Yacht Club. The petitioner represents that he is a general member of the Tiverton Yacht Club and was appointed to the Board of Directors of the Yacht Club in October of 2007. He states that the Yacht Club is a small “blue collar” organization, of which the maximum membership is limited to 200 families, although at this time, the membership includes approximately 155 families. He states that the primary activities of the Yacht Club are family oriented in nature, including Red Cross certified swimming lessons, sailing lessons for children and teens, and other general family-oriented social gatherings. The Yacht Club also runs a small marina, which is located across the street from the Yacht Club’s main facility, which includes about 20 slips for mooring boats. He states that many families who are members of the Yacht Club do not themselves own boats, but rather, obtain memberships solely for the social gatherings and family-centered activities offered by the Yacht Club. The petitioner states that the former building located on Riverside Drive in Tiverton, which housed the activities and operations of the Yacht Club since the 1950s, burned down in a fire in 2003. In the aftermath of the fire, in its attempts to rebuild on the same site, the Yacht Club has been a party to a protracted legal dispute with abutting property owners. Most recently, the Superior Court issued an order, nullifying a building permit which the town had issued to the Yacht Club in 2006, allowing the Yacht Club to build a new clubhouse on the site of the prior one. Most pertinent to this petitioner’s request is a recent submission by the Yacht Club to the Tiverton Town Council (“the Town Council”), requesting an amendment to the Zoning Ordinance, which the Town Council has since referred to the Planning Board, asking for its recommendation. Previously, the Yacht Club was permitted to run its operations out of the Riverside Drive location, which is an area zoned as R-40 (residential), under a non-conforming special use allowance. The Yacht Club has submitted a request to the Town Council for an amendment to the zoning ordinance which would make the club a permitted use, rather than a non-conforming one. The Town Council has in turn passed the matter on to the Planning Board for a recommendation. As such, the petitioner requests an advisory as to whether he may participate in the Planning Board’s consideration and recommendation to the Town Council on the proposed amendment, given that he is a member of the Board of Directors of the Yacht Club. Under the Code of Ethics, a public official or employee 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). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, an official may not participate in a matter concerning or presented by a business associate unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). In the past, the Commission has concluded that public officials are "business associates" of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 2000-74 (concluding that Housing Authority Commissioners may not participate in that Authority’s consideration of the Westerly Housing Association’s funding request, because, as members of the Board of Directors of the Housing Association, the Commissioners had a business association with it); A.O. 98-76 (opining that a member of the Narragansett Town Council may not participate in matters concerning the Narragansett Chamber of Commerce, including the upcoming vote on a possible appropriation of funds to the organization, given that she serves on its Board of Directors). As such, under the Code of Ethics, the petitioner, as a member of the Board of Directors of the Tiverton Yacht Club, is a business associate of the Yacht Club and must recuse from participating in the Planning Board’s review of the proposed amendment to the zoning ordinance submitted by the Yacht Club. See R.I. Gen. Laws §§ 36-14-5(a), 5(f) and 7(a). Notice of recusal must be filed with the Ethics Commission in accordance with R.I. Gen Laws § 36-14-6. Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2000-74 A.O. 98-76 Keywords: Business Associate