Advisory Opinion No. 2011-28

Re: Christopher Wilkens

QUESTION PRESENTED

The Petitioner, a member of the Narragansett Town Council, a municipal elected official, requests an advisory opinion regarding whether he may appear before the Narragansett Planning Board and Narragansett Zoning Board in order to seek approval to subdivide his property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that that Petitioner, a member of the Narragansett Town Council, a municipal elected official, may appear before the Narragansett Planning Board and the Narragansett Zoning Board in order to seek approval to subdivide his property, based on a finding that the unique facts as represented justify application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1).

The Petitioner is a member of the Narragansett Town Council (“Town Council”), having been elected in November of 2006. He represents that he and his wife currently own two residential properties in Narragansett (“Town”), Rhode Island. The first property is his primary residence located at 67 Narragansett Avenue, which he has owned for approximately 25 years. The second property is a two-family house, four doors down, located at 55 Narragansett Avenue, which he bought in January of 2005, prior to his election to the Town Council. He advises that he and his wife bought 55 Narragansett Avenue with the idea of renting it initially and then retiring there in the future. However, he informs that it is no longer economically feasible for them to retain 55 Narragansett Avenue because it has recently lost its long-term tenants, forcing him to accept tenants at significantly lower rates and on a month to month basis.

The Petitioner represents that due to the current economic conditions his business as a self-employed carpenter is down and that his self-employment makes him ineligible for unemployment insurance. Combined with the significant loss of rental income at 55 Narragansett Avenue, he advises that he is no longer able to afford both homes. Thus, he states that both properties are presently for sale.

Prior to selling the property located at 55 Narragansett Avenue, the Petitioner would like to appear before the Narragansett Planning Board (“Planning Board”) and the Narragansett Zoning Board (“Zoning Board”), in order to subdivide the 20,611 square foot lot. He advises that 55 Narragansett Avenue is in an R-10 zone, which requires a minimum of 10,000 square feet per single family home. He is proposing to transform the two-family home at 55 Narragansett Avenue into a single family home, on an approximate 10,000 square foot lot, and create a vacant 10,000 square foot lot (“vacant lot”) to the rear of the current structure. This subdivision and creation of a new landlocked lot requires approval from the Planning Board and the Zoning Board. The Petitioner represents that the subdivision, if approved, would enable him to sell 55 Narragansett Avenue at a lower price, making it more competitive in the current real estate market. Additionally, he states that he intends to keep the vacant lot, in the hopes of building a house for his family in the future. It is likely that, if able to appear before the Planning and Zoning Boards, and if the subdivision is approved, that the Petitioner will only retain the vacant lot, enabling him to liquidate the value of the two residences and downsize to a smaller home in the Town.

Cognizant of section 5(e)’s prohibition against representing himself before a municipal agency over which he is the appointing authority, the Petitioner requests an advisory opinion as to whether his situation justifies the application of the hardship exception found at section 5(e)(1), given that in order to subdivide his property he will need to appear before the Planning Board and the Zoning Board.

Under the Code of Ethics, a public official may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. Section 36-14-5(d).

Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(1). An amendment to the Code of Ethics clarifies that the prohibition on representing oneself also includes representing oneself before another agency for which he or she is the appointing authority or a member thereof. Commission Regulation 36-14-5016. Absent an express finding of hardship by the Commission, section 5(e)’s prohibition continues while the official remains in office, and for a period of one year thereafter. Section 36-14-5(e)(1), (e)(4).

Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code. In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, the prohibitions in that section are absolute.

As an initial matter, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before a municipal agency over which he is the appointing authority. The Petitioner wishes to seek the issuance of a subdivision variance from the Zoning and Planning Boards, the members of which he appoints in his capacity as a Town Council member.

Having determined that section 5(e) prohibits the Petitioner’s application to the Zoning and Planning Boards at this time, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to proceed before the Zoning and Planning Boards with certain restrictions. In considering questions of hardship on a case by case basis, the Commission has focused on a totality of the circumstances including, but not limited to, the following factors in cases involving property: Whether the subject property involves the official’s principal residence or principal place of business; whether the official’s interest in the property is pre-existing to his public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. Under a totality of the circumstances analysis, no single factor is determinative.

While the Commission has not previously considered a fact pattern precisely on point with that presented by this Petitioner, it has considered facts and granted hardship exceptions in circumstances that present somewhat analogous situations. For example, in Advisory Opinion 2009-18, the Commission granted a hardship exception to a member of the Little Compton Town Council to appear before the Little Compton Zoning and Planning Boards regarding a special use permit to take down the current structure, which he described as derelict, and build a new building with commercial space downstairs and a residence upstairs. A.O. 2009-18. The Commission was persuaded by the fact that the property had been in the family for many years, had a similar previous commercial use, and that although it was not the petitioner’s primary residence, his intent was that a family member would reside in the structure if rebuilt. Id. The Commission also required that petitioner to recuse from Zoning or Planning Board appointments until the completion of the next election cycle. Id. See also A.O. 2005-32 (granting a hardship exception to a Westerly Planning Board member to appear before the Planning Board to request a zone change which would allow the petitioner to relocate his business, an ice cream shop, notwithstanding that his property rights did not pre-exist his appointment to the Planning Board); A.O. 2004-33 (granting a hardship exception to a member of the Exeter Town Council and his spouse to appear before the Exeter Planning Board to request a special use permit to allow the petitioner to provide mental health counseling out of an office in his primary residence, provided that the petitioner recuses from Zoning or Planning Board appointments until the completion of the next election cycle).

The cases in which the Commission has not granted a hardship extension generally involved primarily commercial ventures, where the petitioner’s ownership did not predate his appointment to public office. See e.g. A.O. 2006-43 (refusing to apply the hardship exception where property was not the petitioner’s principal place of business or primary residence, but rather a commercial venture that was acquired only a few months before his advisory request, after his appointment to the Planning Board); A.O. 2000-41 (refusing to grant a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property, because although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner); A.O. 97-146 (concluding that a North Kingstown Zoning Board member could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer).

In the present matter, the Petitioner’s ownership interest in 55 Narragansett Avenue accrued almost two years prior to his election to the Town Council. Although it is not his primary residence, 55 Narragansett Avenue is the Petitioner’s sole source of rental income. He informs that it is no longer generating sufficient rental income to cover the ownership costs of the property. Additionally, if the Petitioner sells his personal residence at 67 Narragansett Avenue, 55 Narragansett Avenue would become his personal residence. Moreover, he represents that he must liquidate his real property assets in order to remain financially solvent. The Petitioner seeks to subdivide 55 Narragansett Avenue to make the property more marketable, by lowering the cost of the house on a smaller lot and, more importantly, by trying to preserve the vacant lot for his personal use in the future.

It is the opinion of the Ethics Commission that the totality of these particular circumstances do justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear before the Planning Board and the Zoning Board in order to subdivide his property located at 55 Narragansett Avenue. However, in order to lessen any appearance of impropriety, the Commission instructs the Petitioner to recuse from the Town Council’s appointment or reappointment of any person to the Planning and/or Zoning Boards until after the election cycle for his Town Council seat following the resolution of the Petitioner’s subdivision variance application.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(e)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation 36-14-5016

Related Advisory Opinions:

A.O. 2009-18

A.O. 2006-43

A.O. 2005-32

A.O. 2004-33

A.O. 2000-41

A.O. 97-146

Keywords:

Hardship Exception