Advisory Opinion No. 2014-10 Rhode Island Ethics Commission Advisory Opinion No. 2014-10 Approved: April 29, 2014 Re: George O. Steere, Jr. QUESTION PRESENTED: The Petitioner, a member of the Glocester Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from appearing before the Glocester Town Council to renew an Earth Removal License. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Glocester Town Council, a municipal elected position, is not prohibited by the Code of Ethics from appearing before the Glocester Town Council to renew an Earth Removal License, provided that he recuses from the Glocester Town Council’s discussion and vote regarding his license renewal application. The Petitioner is a member of Glocester Town Council (“Town Council”), having been elected to his first term in 2008. In his private capacity, the Petitioner states that his primary source of income is derived from his work as an excavating contractor. He represents that he and his brother, Randal Steere, jointly own property located off Route 102, at Plat No. 13, Lot No. 2 in Glocester. He states that this property has been in his family for six (6) generations. He informs that he currently excavates sand and gravel from this property for his work as a contractor. He informs that the Town Council first granted an Earth Removal License (“License”) for this property on March 21, 1996, to the Petitioner’s father. He states that the license was transferred to him and Randall when it was last renewed on March 15, 2012. The Petitioner represents that the Town Council issues Earth Removal Licenses following a public hearing, with public notice thereof at least ten (10) days prior to the date of the hearing in the local newspaper and with direct mail notices to all property owners within a 200 foot radius. Glocester Code of Ordinances § 166-5. He informs that Earth Removal Licenses expire at the end of two (2) years and the licensee may file an application for renewal and pay the renewal fee. The Petitioner informs that his License renewal is scheduled for a public hearing and review by the Town Council on May 1, 2014. The Petitioner represents that he will recuse from the Town Council’s consideration of his License renewal. Given the above representations, the Petitioner requests a hardship exception to section 5(e)’s prohibitions on appearing before a board of which he is a member in order to renew this License. Section 5(e) of the Code of Ethics prohibits public officials and employees from representing themselves before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(a)(1). Public officials and employees are similarly prohibited from authorizing another person to appear on their behalf before a state or municipal agency of which they are a member or by which they are employed. Commission Regulation 36-14-5016(a)(2). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. In contrast to most other Code of Ethics provisions, declining to participate in related discussions and votes is insufficient to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists. Section 5(e)(1) specifically authorizes exceptions, which the Commission has granted in certain circumstances, to allow a public official to represent himself before his own agency upon recusal and based upon a finding that a denial of such self-representation would result in a hardship. In reviewing questions of hardship on a case by case basis, the Commission has considered some of the following factors specific to 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 or her public office or is recently acquired; whether the relief sought involves a new commercial venture or an existing business; whether the financial impact is substantial or minor; whether the official action is highly discretionary or largely ministerial; and whether the official’s interests were brought before an agency as a result of the actions of a third party. The Commission considers the totality of the circumstances and no single factor is determinative. The Commission has previously granted hardship exceptions to municipal public officials in order to seek relief related to commercial ventures that were primary sources of income and predated their public service. See A.O. 2011-33 (granting a hardship exception to a former Westerly Planning Board member and permitting him to seek a permit from his former board to install an additional sign at his ice cream shop because the business was his primary source of income and his ownership interest predated his service on the Planning Board); A.O. 2004-33 (granting a hardship exception to an Exeter Town Council member, who in his private capacity was a licensed mental health counselor, and permitting him to seek a special use permit from the Exeter Planning Board, over which he had appointing authority, in order to establish a home office for treating clients at his primary residence, based upon the facts that it was his primary residence that he owned prior to his election to the Town Council and it would become his principal place of business); A.O. 2001-29 (granting a hardship exception to a member of the Narragansett Town Council and permitting him 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 (8) years prior to his election to the Town Council). In contrast, the Commission has previously declined to grant hardship exceptions for matters involving new commercial ventures. See A.O. 2003-49 (declining to grant a hardship exception to the Lincoln Assistant Solicitor who 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 because his ownership 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); A.O. 2000-41 (declining to grant a hardship exception to an Exeter Zoning Board member who sought a special use permit from the Zoning Board to locate a cellular communications tower on his residential property). In the present matter, the Petitioner seeks to renew a License that was first issued for this property in 1996, more than ten (10) years prior his election to the Town Council. He informs that the property in question has been in his family for six (6) generations. He states that the License was first granted to his father and has since been transferred to the Petitioner and his brother after his father’s death. He represents that he uses the sand and gravel excavated at this property for his work as an excavating contractor, which is his primary source of income. Considering the Petitioner’s above representations, and consistent with our past advisory opinions in this area, 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 is authorized to appear before the Town Council to renew the Earth Removal License for property that he jointly owns with his brother, provided that he recuses from all participation and voting in any matter involving his License renewal. Notice of recusal shall be filed with the Commission in accordance with § 36-14-6. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, or charter provision may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2011-33 A.O. 2004-33 A.O. 2003-49 A.O. 2001-29 A.O. 2000-41 Keywords: Hardship Exception Property Interest