Advisory Opinion No. 2003-15

Re: John F. Winfield, Jr.

QUESTION PRESENTED

The petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion as to whether he may attend a meeting of the Scituate Zoning Board and voice his opposition, as an abutter, to a special use permit application, given that the Town Council appoints members to the Zoning Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Scituate Town Council, a municipal elected position, may attend and participate in meetings of the Zoning Board regarding a special use permit application where he is an abutter.

The petitioner represents that he is an abutting landowner to an applicant appearing before the Scituate Zoning Board on a special use permit application. He states that in his capacity as a Scituate Town Council member, he has voted on the appointment of current Zoning Board members. The petitioner seeks guidance as to whether he may provide public testimony against the applicant during a Zoning Board hearing.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(d) further prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself or any person within his family. Additionally, a public official is prohibited from acting as an agent or attorney for compensation before any board over which he exercises fiscal or jurisdictional control. See Commission Regulation 5008. Finally, Commission Regulation 7003 provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child.

Commission Regulation 5008 provides that a public official may not act as an agent or attorney for compensation before boards over which he exercises fiscal or jurisdictional control. Here, the Scituate Zoning Board is under the fiscal and jurisdictional control of the Scituate Town Council. However, the petitioner is not acting as an agent or attorney for compensation. As such, the prohibitions of 5008 do not apply.

Under Commissioner Regulation 7008, sometimes referred to as the public forum exception, a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual. See Commission Regulation 7003. Here, the petitioner wishes to appear before the Zoning Board to provide public testimony against a change in zoning for land that abuts his property. In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2002-65 (advising that a member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public); A.O. 97-85 (opining that the Central Falls City Solicitor may testify as a private citizen at a Central Falls Liquor Board hearing regarding the revocation of a liquor license of a bar located adjacent to the petitioner's private law offices); and A.O. 2000-9 (finding that member of the Tiverton Town Council may provide public comment before the Council in his individual capacity on the general issue of sewerage services when such matters would impact his private financial interests as the owner of a septic tank cleaning service, provided that he does so in a public forum and is afforded no greater access to the Council by virtue of his public office).

Additionally, in an analogous advisory opinion, the Commission opined that under the public forum exception, a member of the Cumberland Town Council may appear before the Zoning Board to provide public comment despite the fact that the Town Council appoints members to the Zoning Board. See A.O. 97-114.

Therefore, the petitioner may address the Zoning Board regarding a special use permit application for abutting land as long as he does not receive access or priority not available to any member of the public. This, of course, does not apply to executive sessions, since those meetings are not generally accessible to the general public. We further caution the petitioner that he may not in any way use his position to influence members of the Zoning Board. See R.I. Gen. Laws 36-14-5(d).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-5008

36-14-7003

Related Advisory Opinions:

2002-65

2000-9

98-3

97-114

97-85

Keywords:

Public Forum Exception

Property Interest