Advisory Opinion No. 2001-54

Re: Betty L. Hubbard, ASLA

QUESTION PRESENTED

The petitioner, a Jamestown Planning Commission member, a municipal appointed position, requests an advisory opinion as to whether she may testify as an expert witness before the Zoning Board in her private capacity as a landscape architect.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Jamestown Planning Board member, a municipal appointed position, may testify as an expert witness before the Zoning Board in her private capacity as a landscape architect.

The petitioner is the Chair of the Jamestown Planning Commission. She advises that the Planning Commission routinely reviews and makes recommendations to the Zoning Board regarding applications for special use permits and variances. Where the language of the zoning ordinance is unclear, the Zoning Board and/or the Building Official may request that the Planning Commission clarify the language by reviewing and amending the ordinance for the Town Council’s hearing and approval. She informs that, in her private capacity as a landscape architect, she has been asked to testify before the Zoning Board regarding the meaning of two terms presently undefined in the zoning ordinance. She represents that the Planning Commission has not reviewed the terms at issue and has not been asked to clarify them. She advises that a private client has asked her to testify as to how she interpreted the terms when she designed the landscape that is before the Board. In the event that the Planning Commission considers this matter in the future, she indicates that she would recuse herself.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). She may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). R.I. Gen. Laws § 36-14-5(e)(3) provides that she may not act as an expert witness before her agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to her, a family member, business associate or any business by which she is employed or represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed her position with the agency. This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by her former agency that is not available to the general public. Finally, R.I. Gen. Laws §§ 36-14-5(b), (c) and (d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of her official employment, particularly for the purpose of obtaining financial gain.

The Commission concludes that the Code of Ethics does not prohibit the petitioner from testifying before the Jamestown Zoning Board in her private capacity as a landscape architect. Pursuant to R.I. Gen. Laws § 36-14-5(e)(4), she may not have any personal involvement with a matter before Planning Commission that goes beyond ministerial activities for a period of one-year following her expiration of office. Section 5(e)’s revolving door restrictions do not extend to her having substantive involvement in matters before other municipal departments or entities within the Town of Jamestown, such as the Zoning Board. Although the Zoning Board may request that the Planning Commission provide clarification and/or recommendations on certain matters, her public office does not carry-over, with the accompanying restrictions, to other public bodies within the Town of Jamestown. See A.O. 2001-47 (concluding, inter alia, that although the Hopkinton Building & Zoning Official advises the Zoning Review Board on certain matters in his official capacity, his employment within that Office does not carry-over, with the accompanying restrictions, to other public bodies within the Town); A.O. 96-84 (opining that a former Jamestown Planning Board member may appear as a witness before the Zoning Board less than one year after his resignation, but may not appear before the Planning Board or at any joint meeting of the Planning and Zoning Boards).

In the event that the Planning Commission is asked to clarify the ordinance terms at issue, the petitioner must recuse herself from participation and/or vote on the matter. Notice and recusal should be filed with both the Jamestown Planning Commission and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. In any instance, the petitioner may not use any confidential information obtained while serving on the Planning Commission for financial gain. See R.I. Gen. Laws §§ 36-14-5(a), (c), (d).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2001-47

2001-42

2001-26

2000-66

2000-60

99-140

99-125

99-108

99-61

99-53

98-92

97-25

97-3

96-84

95-6

Keywords:

Financial interest

Private employment

Revolving door