Advisory Opinion No. 2005-63 Re: Alfred W. DiOrio QUESTION PRESENTED: The petitioner, a member and Chairman of the of the Hopkinton Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Hopkinton Planning Board’s consideration of the Wood River Village application for a Comprehensive Permit to build 30 units of affordable housing on a parcel of land in Hopkinton, given that his spouse is employed as the Director of Human Resources by South Shore Mental Health Center, Inc., an applicant proposing this application. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Hopkinton Planning Board, a municipal appointed position, may participate in or vote on the Wood River Village application for a Comprehensive permit to build 30 units of affordable housing on a parcel of land in Hopkinton, despite the fact that his spouse is employed as the Director of Human Resources by South Shore Mental Health Center, Inc., an applicant proposing this application. The petitioner informs that he is a member and Chairman of the Hopkinton Planning Board, which generally has jurisdiction and oversight over land development and subdivision within Hopkinton and also serves as advisor to the Hopkinton Zoning Board of Review on such matters as requests for special use permits. Additionally, he states that his spouse is employed as the Director of Human Resources by South Shore Mental Health Center, Inc. (hereinafter “SSMHC”), which is a Rhode Island non-profit corporation that provides mental health services for residents of Washington County. He represents that SSMHC’s activities include owning and operating group homes that provide affordable housing for clients. The petitioner informs that SSMHC joined with two other non-profits as co-applicants on an application coming before the Hopkinton Planning Board. The application is for a Comprehensive permit to build 30 units of affordable housing, named the “Wood River Village,” on a parcel of land in Hopkinton. He represents that the application requests relief from several requirements of the Hopkinton zoning and subdivision ordinances. He informs that without this relief, the Wood River Village would likely be unfeasible as proposed. The petitioner represents that pursuant to Rhode Island’s “affordable housing” laws, the Planning Board will have complete jurisdiction over this proposal, including requests for relief from zoning regulations. Furthermore, he informs that SSMHC’s financial investment in the project is minimal at this point, consisting only of a $1,000 “earnest money” deposit on land in Hopkinton and a HUD application fee of $3,500, which is not site-specific and would not be necessarily lost if the project does not go forward. The petitioner also states that SSMHC will not invest any further money in the project unless it is approved and goes forward. Accordingly, the petitioner contends that SSMHC will not derive any “material” financial gain or loss from any action of the Planning Board; however, the petitioner represents that the Planning Board’s approval or disapproval of the project will have some impact on the SSMHC’s ability to perform part of its charitable mission. The petitioner informs that his wife’s duties as Director of Human Resources do not include any management oversight or other responsibility for Wood River Village. He states that neither his wife’s salary nor any other terms of her employment would be affected, directly or indirectly, by any action of the Planning Board concerning the project. Furthermore, the petitioner informs that neither he nor his wife would be financially impacted by the petitioner’s participation in the application as a member and Chairman of the Planning Board. Before review of the application begins, the petitioner seeks this request to determine whether it is appropriate for him to participate in the Planning Board’s consideration of the Wood River Village application. Under the Code of Ethics, the petitioner 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 and employment 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). Furthermore, the petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or a family member. See R.I. Gen. Laws § 36-14-5(d). In the instant matter, the petitioner’s spouse is an employee of SSMHC. The Code of Ethics does not require the petitioner to recuse from a matter involving his spouse’s employer provided that there is no indication that the matter will result in a direct financial impact upon his spouse. See A.O. 2000-39 (opining that a Burrillville Town Councilor may participate in discussions and vote on the Council’s consideration of a conflict between landowners and the owner of Pascoag Lake despite the fact that her spouse is employed by the Episcopal Diocese of Rhode Island, which owns property abutting the Lake); A.O. 99-79 (opining that the Vice Chairperson of the Providence School Board may participate and/or vote upon contracts involving Gem Heating & Plumbing Co., Inc., notwithstanding the fact that her spouse is employed by Gem); A.O. 99-28 (opining that a Westerly Zoning Board of Review member may participate in the review of an application for a special use permit to construct a drive-thru in two new locations notwithstanding the fact that the applicant employs his spouse); A.O. 98-45 (opining that the Administrator of the Rhode Island Division of Public Utilities and Carriers may participate in matters that concern the telecommunications industry or Bell Atlantic (formerly Nynex) notwithstanding the fact that he receives a pension from Nynex and his wife will be employed by Nynex until her anticipated retirement). Based upon the representations made by the petitioner that neither his spouse nor her employment with SSMHC will be financially impacted by his vote on the application, the Code of Ethics does not prohibit his participation. Accordingly, the petitioner may participate in and vote on the SSMHC’s application before the Planning Board given that his participation will not financially impact him or his spouse who is employed by SSMHC. The petitioner is advised that should circumstances change so that his participation in the application may financially impact his spouse, he will be required to recuse from the Planning Board’s consideration of this matter and file notice of his recusal with the Planning Board and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions: 2000-39 99-79 99-28 98-45 Keywords: Business Associate Recusal