Advisory Opinion No. 2012-16 Advisory Opinion No. 2012-16 Re: Michael E. Dillon QUESTION PRESENTED: The Petitioner, a member of the Foster Town Council, a municipal elected position, requests an advisory opinion as to whether he may appear before the Foster Zoning and Planning Boards relative to establishing a residential compound on his personal property, given his authority, as a member of the Town Council, to appoint and/or re-appoint members of the Foster Zoning and Planning Boards. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Foster Town Council, a municipal elected position, may appear before the Foster Zoning and Planning Boards relative to establishing a residential compound on his personal property, based upon a finding that the unique facts, as represented, justify the application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1). The Petitioner is a member of the Foster Town Council (“Town Council”), having been elected in November, 2010. As a member of the Town Council, he has the authority to appoint and/or re-appoint members of the Foster Zoning and Planning Boards (“Boards”). He represents that he and his wife presently own property, including 32 acres of land, located at 95 Mount Hygeia Road in the Town of Foster, which was subdivided and purchased in May, 1999. Since that time, the Petitioner has continuously owned the property and began utilizing it as his personal residence in 2001. The Petitioner also states that, since he purchased the property in 1999, his intention has always been to establish the property as a residential compound in order to provide a portion of the land to his daughter and a portion of the land to his son, on which they could build their own homes. The Petitioner further represents that he has no intention of selling any portion of the land. The Petitioner informs that a provision of the Foster Zoning Ordinances provides that no lot that has been divided after February, 1998 shall be eligible for a residential compound. Foster Zoning Ordinance, Art. VIII §1(B)(3). Therefore, the Petitioner represents that, in order for him to establish a residential compound on his property, he must appear before the Zoning Board to request a variance from the foregoing regulation. Following his appearance before the Zoning Board, he must also appear before the Planning Board relative to establishing his property as a residential compound. As such, the Petitioner requests an advisory opinion as to whether he may appear before the Boards relative to establishing a residential compound on his personal property, given his authority, as a member of the Town Council, to appoint and/or re-appoint members of the Boards. 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). A public official may not use his public office or confidential information received through his official position to obtain financial gain for himself or his family members, other than that which is 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 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 an official remains in office, and for the 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 of 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 relief from the Boards, the members of which he has the authority to appoint and/or re-appoint in his capacity as a member of the Town Council. Having determined that section 5(e) prohibits the Petitioner’s appearance before the 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 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 pre-exists his election to public office or was recently acquired; and whether the relief sought involves a primarily commercial venture. The Commission may also determine that other circumstances are relevant to its inquiry. The Commission considered similar facts in Advisory Opinion 2011-23, opining that the Town Planner for the Town of Richmond could appear before the Planning Board and Town Council in order to subdivide her personal property. In that case, the property under review involved land surrounding her personal residence which she sought to subdivide in order to give a portion to her son, on which he could build his own home. The Commission opined that because the Petitioner had owned the property for over thirty years, predating her appointment as Town Planner, and that she was seeking to subdivide her property in order to provide land to her son which was not a commercial transaction, the particular facts justified the application of the hardship exception with certain restrictions. Specifically, relative to Town Council members with appointing authority over the Boards before which they wish to appear, the Commission has granted hardship exceptions subject to certain restrictions. See A.O. 2007-51 (granting a hardship exception to a member of the Portsmouth Town Council to appear before the Zoning Board relative to a variance from lot coverage and property line zoning requirements for her personal property subject to her recusal from Zoning Board appointments); A.O. 2007-19 (granting a hardship exception to a member of the Little Compton Town Council to appear before the Zoning and Planning Boards relative to a subdivision variance for his residential property subject to his recusal from Zoning and/or Planning Board appointments). In the instant case, the Petitioner seeks to appear before the Boards relative to property involving his personal residence. The Petitioner has continuously owned the property for thirteen years and has utilized the property as his personal residence since 2001, predating his election to the Town Council by approximately ten years. Also, he is seeking to subdivide his property in order to provide land to his children to build their own homes, which is not a commercial transaction. The Commission is of the opinion that the totality of these particular circumstances does justify making an exception to section 5(e)’s prohibitions. However, in order to lessen any appearance of impropriety, the Commission instructs the Petitioner to recuse from the Town Council’s appointment and/or re-appointment of any person to the Boards until after the election cycle following the resolution, including any appeals, of the Petitioner’s matters before the Boards. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may appear before the Foster Zoning and Planning Boards relative to establishing a residential compound on his personal property, based upon a finding that this particular situation justifies the application of the hardship exception provided in R.I. Gen. Laws § 36-14-5(e)(1) and subject to his recusal from the Town Council’s appointment and/or re-appointment of any person to the Zoning and/or Planning Boards. Notices of recusal must be filed in accordance with R.I. Gen. Laws § 36-14-6. 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. 2011-23 A.O. 2007-51 A.O. 2007-19 Keywords: Hardship Exception Property Interest