Advisory Opinion No. 2011-33 Advisory Opinion No. 2011-33 Re: Mario P. Celico QUESTION PRESENTED The Petitioner, a former member of the Westerly Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he may appear before the Westerly Planning Board in order to seek a permit to install an additional sign at his business. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Westerly Planning Board, a municipal appointed position, may appear before the Westerly Planning Board in order to seek a permit to install an additional sign at his business, 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 was a member of the Westerly Planning Board (“Planning Board”) from 1999 through November 2010. He represents that he was elected to the Westerly School Committee (“School Committee”) in November of 2010. He states that he was sworn in as a School Committee member on November 22, 2010, and his resignation from the Planning Board was officially accepted by the Westerly Town Council at its November 29, 2010 meeting. The Petitioner represents that he has owned Dusty’s Ice Cream (“Dusty’s”) since 1993. He states that Dusty’s two locations in Westerly (“Town”) are his principal business and source of income. He informs that the back of Dusty’s Friendship Street location faces Amtrak railroad tracks and busy Railroad Avenue. He advises that, until recently, the trees lining the railroad tracks blocked the view from Railroad Avenue to the back wall of his business. However, he states that Amtrak recently cut down those trees, opening a new line of sight from Railroad Avenue to the back wall of Dusty’s. He also advises that prior to his ownership, when the trees were too small to obscure the view, the previous owner of the property had a sign in a similar spot. Now, the Petitioner states that he would like to take advantage of the higher traffic flow on Railroad Avenue and place a sign on the rear of his building. The Petitioner informs that it is the Town’s policy to review all signs “to minimize adverse effects of inappropriate signs and to provide for the use of signs as a means of communication in a manner that is consistent with the aesthetic qualities of the Town, and with pedestrian and traffic safety.” Town’s Code of Ordinances § 260-86(A). The procedure to obtain a sign permit is as follows: Signs shall not be erected without a permit granted in accordance with the provisions of this section. Applications for a sign permit shall be submitted to the Zoning Official on the appropriate form provided by the Zoning Official. The application shall include plans and specifications of the proposed sign, including its dimensions, area, maximum and minimum height, proposed message and design, materials, colors, method of construction, method of illumination, and location on the property on which it is to be displayed and any other information required by the Zoning Official. Such application shall be signed by the owner of the property on which the sign is to be located. Notwithstanding the provisions of this section, development plan review shall be required for all signs which are greater than 18 square feet and for all signs for any use in Zoning Districts SC-WH, SC-M, and HC. Town Code of Ordinances § 260-86(C). The Petitioner informs that the permit process is dependent on the size of the sign. He represents that sign area can be calculated three ways: (1) The area of a sign shall be computed from the outer dimensions of the frame, trim or molding by which the sign is enclosed. (2) When a sign consists of individual letters, symbols, or characters, its area shall be computed as the area of the smallest rectangle which encloses all of the letters, symbols or characters. (3) When a sign consists of two of [sic] more faces, only one face of the sign shall be used in computing the sign area if the faces are parallel to and within 12 inches of each other. Otherwise, all faces of the sign shall be used to compute the sign area. Town Code of Ordinances § 260-86(D)(4)(a)(1-3). The Petitioner states that his sign will consist of letters mounted on a 4 feet by 8 feet aluminum sheet, to be attached to the rear wall of his business. The Petitioner submitted an application for a sign permit to the Zoning Official. He advises that the Zoning Official concluded that the area of the Petitioner’s sign was 32 square feet and, thus, forwarded his permit application to the Town Planner for the Planning Board’s consideration because all signs greater than 18 square feet must go before the Planning Board for development plan review. The Petitioner represents that a development plan review for his sign permit is scheduled before the Planning Board on May 17, 2011. Cognizant of section 5(e)’s prohibition against representing himself before a municipal agency of which he was recently a member, 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 add an additional sign to his primary business he will have to appear before the Planning 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. Section 36-14-5(a). A public official 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 against representing oneself also includes authorizing or directing another person to appear before a board on one’s behalf. Commission Regulation 36-14-5016(a)(2). 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. Here, as a recent member of the Planning Board, resigning less than a year ago in November 2010, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before a municipal agency of which he was a member within the past year. Having determined that section 5(e) prohibits the Petitioner’s application to the Planning Board 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 Planning Board. In considering questions of hardship on a case by case basis, the Commission has focused on the 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 her 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. In past advisory opinions, the Commission has applied the hardship exception where the matter involved a modification to the official’s place of business. For example, in Advisory Opinion 2001-29, the Commission granted a hardship exception to a member of the Narragansett Town Council to appear before the Narragansett Zoning Board, over which he had appointing authority, in order to apply for an alteration to the condominium site plan to add a fence to his restaurant’s patio, based on the fact that the petitioner owned and operated the restaurant for eight years prior to his election to the Town Council. See also 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); A.O. 95-110 (granting a hardship exception to a member of the Middletown Town Council permitting him to appear before the Middletown Zoning Board, over which the Town Council has appointing power, in order to apply for a special zoning exception for the addition of a drive-up window to the petitioner’s restaurant, based on his vested property rights in his primary business). In Advisory Opinion 2010-19, the Commission granted a hardship exception to an alternate member of the Newport Zoning Board to appear before the Zoning Board in order to appeal the denial of a building permit to refurbish unused space for commercial rental use within a residential rental property. There, the petitioner’s ownership predated his public service; the desired use as a commercial storefront rental was consistent with the previous use of that space for approximately 150 years, albeit prior to his own ownership interest; and the least burdensome and most practical use of the space was as a commercial storefront rather than undergoing an expensive conversion into residential space, which would be structurally difficult and still require his appearance before the Zoning Board. In contrast, the Commission has previously declined to grant a hardship exception for matters involving new commercial ventures. In Advisory Opinion 2003-49, the Assistant Solicitor for the Town of Lincoln wished to represent himself before the Lincoln Town Council, Zoning Board and Planning Board regarding the development of two parcels of real estate he owned in the Town. The hardship exception was not granted because the petitioner’s ownership of the lots did not predate his appointment as Assistant Solicitor and it was uncertain as to whether either lot would be used as the petitioner’s primary residence or simply resold in commercial transactions after development. The Commission also declined to find a hardship in Advisory Opinion 2000-41, where an Exeter Zoning Board member sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property. Although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner. See also 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 seeks to install a new sign now, taking advantage of the newly cleared line of sight to a busy street, hopefully increasing his ice cream sales during the busy summer season rather than waiting until next December when the one-year revolving door prohibition would expire. The factors favor the application of the hardship exception because it involves the Petitioner’s principal place of business, his ownership predated his Planning Board service by six years, and the relief sought is not a new commercial venture but rather a minor improvement to his current principal place of business and primary source of income. Based upon the above representations, it is the opinion of the Ethics Commission that the totality of the circumstances justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear before the Westerly Planning Board order to seek a permit to install an additional sign at his business. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) Commission Regulation 36-14-5016 Other Relevant Authority: Westerly Code of Ordinances § 260-86 Related Advisory Opinions: A.O. 2010-19 A.O. 2004-33 A.O. 2003-49 A.O. 2000-41 A.O. 2001-29 A.O. 97-146 A.O. 95-110 Keywords: Hardship Exception