Advisory Opinion No. 2003-44

Re: Kirk McDonough

QUESTION PRESENTED

The petitioner, a Cranston City Council member, a municipal elected official, requests an advisory opinion as to whether he may participate in the Safety Services and Licensing Committee’s consideration of a proposed license for the Krispy Kreme Donut franchise given that the proposed shop is approximately five hundred (500') feet from his residence.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Cranston City Council member, a municipal elected official, from participating in the Safety Services and Licensing Committee’s consideration of a proposed license for the Krispy Kreme Donut franchise notwithstanding that the proposed shop is approximately five hundred (500') feet from his residence.

The petitioner represents that he currently serves as a city councilman representing the 6th ward in Cranston. He informs that by reason of his position on the City Council, he serves as the vice-chair of the Safety Services and Licensing Committee (the “Committee”). He states that a matter is currently before the Committee involving a proposed license for a Krispy Kreme Donut franchise that is due to be opened in the 6th ward of Cranston. Additionally, he informs that this proposed location is approximately five hundred (500') feet from his residence. Finally, the petitioner informs that prior to his election to the City Council he publicly opposed the location of the Krispy Kreme Donut shop. The petitioner seeks this advisory opinion to whether he may participate in matters involving the proposed Krispy Kreme Donut shop given that he resides approximately five hundred (500') feet from the proposed location and given his prior opposition to the proposed location.

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.

In previous advisory opinions, the Commission has concluded that town officials may not participate and vote on matters involving abutting property since they would have a direct financial interest in any official activity affecting the property. See, e.g., A.O. 2002-65 (opining that a Lincoln Planning Board member may not participate and/or vote on a proposed condominium development located approximately 200 feet from his property); A.O. 2001-19 (concluding that a Lincoln Planning Board member may not participate and/or vote on matters involving the Whipple-Cullen Farm, given that he owns property abutting the proposed residential development). The Commission consistently has found that substantial conflicts requiring recusal exist where the official is an abutter to the applicant, generally defined as residing within 200 feet of the property at issue. See, e.g., A.O. 95-27.

In past opinions, the Commission has applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99; A.O. 98-92; A.O. 98-66; A.O. 98-56; A.O. 98-35; A.O. 98-19; A.O. 97-76; A.O. 97-63. Applying the presumption, the Commission frequently has stated that a public official may not participate in a decision concerning abutting property absent some evidence that the decision would not affect the financial interests of the public official.

However, here the petitioner is not an abutter to the proposed Krispy Kreme Donut shop. The word “abutter” is a term of art, defined in the Rhode Island General Laws as “[o]ne whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land.” R.I. Gen. Laws § 45-24-31(1).

In an analogous advisory opinion, the Commission opined that the Code of Ethics does not prohibit a member of the North Smithfield Town Council from participating in zoning matters involving a Dunkin Donuts franchise when his property was approximately four hundred (400') feet away. There, the Commission opined that the petitioner was not an abutter and as such there was not presumption of financial impact. See A.O. 98-147

Under the facts as represented by the petitioner, his property neither adjoins the proposed Krispy Kreme Donut shop, nor is it within 200' feet of the proposed location. Rather, the petitioner represents that the proposed location is approximately five hundred (500') feet away from his residence. Here, since the petitioner is not an abutter, there should be no presumption of a financial impact. Rather, based upon the past advisory opinions discussed above, absent some evidence indicating a reasonable forseeability of financial impact, the Code of Ethics does not prohibit the petitioner from participating and voting in matters before the Safety Services and Licensing Committee regarding the proposed Krispy Kreme Donut shop. Finally, no provision of the Code of Ethics would prohibit the petitioner from participating in matters in which he publicly spoke in opposition to prior to his election.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2003-13

2002-65

2002-30

2002-16

2001-19

2001-4

2000-90

99-148

99-99

98-167

98-92

98-66

98-56

98-35

98-19

97-76

97-63

95-27

Keywords:

Abutter

Property interest