Advisory Opinion No. 2021-6 Rhode Island Ethics Commission Advisory Opinion No. 2021-6 Approved: January 12, 2021 Re: Richard Keene QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participation in the Planning Board’s discussions and vote relative to a particular solar project application, given that representatives of the North Smithfield Heritage Association (“NSHA”), a private non-profit organization, of which he serves as a member of the Board of Directors and as its President, have provided, and are likely to provide again, public comment on the application during public hearings of the Planning Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, is not prohibited by the Code of Ethics from participation in the Planning Board’s discussions and vote relative to a particular solar project application, notwithstanding that representatives of the North Smithfield Heritage Association (“NSHA”), a private non-profit organization, of which he serves as a member of the Board of Directors and as its President, have provided, and are likely to provide again, public comment on the application during public hearings of the Planning Board, provided that the requirements of Commission Regulation 520-RICR-00-00-1.2.1(B)(2) are satisfied. The Petitioner is a member of the North Smithfield Planning Board (“Planning Board”) and has served in that position since his appointment by the Town Council in September of 2018. In his private capacity, the Petitioner serves on the Board of Directors and as the President of the North Smithfield Heritage Association (“NSHA” or “Association”), a private non-profit organization founded in 1970. The Petitioner informs that the NSHA: . . . shall strive to preserve and promote North Smithfield’s heritage. At a minimum, members and committees shall endeavor to identify, acquire, maintain, and preserve historic buildings and historic locations, as well as open them to the public. Additionally, the Association shall endeavor to reserve for posterity historic references, relics, landmarks, historical cemeteries, and objects of historical, educational, architectural, cultural, and aesthetic value related to the Town of North Smithfield. The Association shall assist local property owners with their preservation efforts. The Petitioner states that the NSHA, which has more than 200 members, is an entirely volunteer organization and that no one receives any remuneration for serving as an officer or director. He further states that, in order to fulfill its mission, the NSHA raises money from, among other sources, annual membership dues, donations, rental fees from one of the three historic buildings maintained by the NSHA, and grants awarded to the Association by the Town of North Smithfield. The Petitioner represents that presently before the Planning Board for review is an application for a solar project (“Solar Project”), the master plan for which was already approved by the Planning Board. He further represents that he participated in the Planning Board’s discussions and vote relative to the Solar Project’s master plan approval during which he expressed his opinion relative to the Solar Project. The Petitioner states that the Vice President of the NSHA was also present at the hearing relative to the Solar Project’s master plan and spoke on behalf of the NSHA in support of the Solar Project. The Petitioner explains that the applicant must next come before the Planning Board for preliminary and then final plan approval. The Petitioner states that neither he, any of his family members, nor the NSHA are abutters to the property subject to the Solar Project. He adds that the NSHA does not stand to be financially impacted by the Planning Board’s discussions and vote on the Solar Project and that the NSHA is neither a party nor a participant in the matter. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics requires his recusal from the Planning Board’s future discussions and votes concerning the Solar Project if representatives of the NSHA appear and provide comments during the public comment portions of the Planning Board’s hearings.[1] Under the Code of Ethics, a public official 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. R.I. Gen. Laws § 36-14-5(a). A conflict of interest exists if a public official has reason to believe or expect that he, his family member, his business associate, or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family member, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, under Commission Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”), a public official must recuse from participation in any matter if his business associate appears or presents evidence or arguments before the public official’s state or municipal agency. A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). The Ethics Commission has consistently opined that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts and, therefore, was required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests); A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC). Here, the Petitioner serves on the Board of Directors and as the President of the NSHA, thus, he is a business associate of the NSHA. Therefore, Regulation 1.2.1(A)(2) requires him to recuse from participating in matters before his municipal agency when his business associate appears or presents evidence or arguments. However, Regulation 1.2.1(B)(2) contains an exception whereby a person subject to the Code of Ethics is not required to recuse himself when: The person’s business associate, employer, household member or any person within his or her family is before the person’s state or municipal agency during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the business associate, employer, household member or person within his or her family is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. This exception focuses on unique situations, not otherwise contemplated by Regulation 1.2.1(A), where a public official’s family member, business associate or employer appears before the public official’s board on a matter in which the person appearing has no financial interest in the matter and is not a party or a participant. In Advisory Opinion 2015-34, the Ethics Commission reviewed facts similar to the ones presented in the instant matter. There, the Ethics Commission opined that a member of the Westerly Planning Board was not prohibited by the Code of Ethics from participating in the Westerly Planning Board’s consideration of a major land development application, notwithstanding that the petitioner was a member of the Board of Directors of Greater North End Community Development, Inc. (“North End”), and that her fellow Board members, or other representatives of that organization were likely to provide public comment during the public hearing for that application. The Ethics Commission based its opinion on the petitioner’s representations that her business associates: were not parties or participants in the application; did not own any property within 200 feet of the perimeter of the subject property; and did not have any financial interest in the outcome of the application. See also A.O. 2013-9 (opining that a Woonsocket Zoning Board member could participate in the Zoning Board’s reconsideration of a variance application notwithstanding his business associate’s past appearance as a remonstrant in that matter and the possibility that his business associate could appear again during the public comment portion of the variance hearing, given that neither the petitioner nor his business associate were a party or participant in the variance application, did not own property within the 200-foot perimeter of the property under review, and did not have a financial interest in the matter). Here, the Petitioner represents that: the NSHA is not a party or participant in the application for the Solar Project; is not an abutter to the subject property; does not have a financial interest in the outcome of the Solar Project application; and that the appearance of the NSHA will be during public comment period in which all other members of the public would have equal opportunity to comment. Based on the Petitioners representations, the applicable provisions of the Code of Ethics, and consistent with the prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is not required to recuse if his fellow members of the NSHA Board of Directors, or any other representative of the NSHA, appears before Planning Board during the public comment portion of the hearings on the Solar Project. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions A.O. 2015-34 A.O. 2014-14 A.O. 2013-9 A.O. 2012-28 Keywords Business Associate Recusal [1] The Petitioner informs that the firefighters are currently operating under a CBA approved in 2015 that was set to expire in 2018. [2] In recognition of his responsibility to seek approval of an alternate chain of command following his daughter’s marriage to a firefighter within the Fire Department for which the Petitioner serves as Chief, the Petitioner has requested a second advisory opinion from the Ethics Commission. That request is also on today’s agenda.