Advisory Opinion No. 2014-26 Rhode Island Ethics Commission Advisory Opinion No. 2014-26 Approved: September 23, 2014 Re: Peter N. Dennehy, Esq. QUESTION PRESENTED: The Petitioner, a member of the Barrington Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board for purposes of obtaining a dimensional variance to construct a second-story dormer on his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Zoning Board of Review, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board for purposes of obtaining a dimensional variance to construct a second-story dormer on his personal residence. The Petitioner is a member of the Barrington Zoning Board of Review (“Zoning Board”), having first been appointed as an alternate member in November 2009 and then appointed as a full member in April 2010. In his private capacity, the Petitioner is an attorney employed by the State of Rhode Island. He represents that he and his spouse have owned their home located on Hanson Road in Barrington, which has served as their primary and only residence since 1979. The Petitioner maintains that their home is located at the end of Hanson Road and borders Hundred Acre Cove, a salt water estuary. He states that they would like to add a second-story dormer with windows to the southeast side of their home in order to improve the natural cross ventilation and add some much needed storage. The Petitioner explains that, because his home is located within 100 feet of Hundred Acre Cove and adding a dormer would alter the roof on the southeast side of the house, the Barrington Zoning Ordinance requires a dimensional variance for the setback from a wetland or water body before any such construction could begin. Cognizant of Rhode Island General Laws § 36-14-5(e)’s prohibition against representing himself before a municipal agency of which he is a member, the Petitioner requests an advisory opinion as to whether his situation justifies application of the hardship exception set forth in subsection (e)(1). Under the Code of Ethics, a public official, state or municipal, shall not represent himself or any other person before a state or municipal agency of which he is a member or by which he is employed, unless the Commission determines that a hardship exists. Section 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1). Furthermore, section 5(e)’s prohibition against representing oneself has been extended to include authorizing and/or directing another person to appear before an agency or board on one’s behalf. Commission Regulation 36-14-5016(a)(2). These prohibitions apply while the public official is in office and remain in effect for a period of one year thereafter. Moreover, while many conflicts can be avoided under the Code of Ethics by recusing from participating and voting in related matters, such recusal is insufficient to avoid section 5(e)’s prohibitions. In considering and deciding the applicability of the hardship exception on a case-by-case basis, in matters involving property the Commission has focused on the totality of the circumstances including, but not limited to, factors such as: whether the subject property involves the official’s primary residence or primary place of business; whether the official’s interest in the property is pre-existing to his or her public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. When considering the totality of the circumstances, no single factor is determinative. There is a plethora of prior advisory opinions in which the Commission has granted the hardship exception based on similar circumstances. In Advisory Opinion 2011-34, the Commission considered whether an East Greenwich Zoning Board member could appear before her Board to request a dimensional variance to construct a storage shed on her personal property. The Commission granted a hardship exception based on the petitioner’s representations that the dimensional variance sought involved her principal residence, her ownership of the subject property predated her public office by over two years, and the relief sought was personal and not tied to any commercial objective. See also A.O. 2013-6 (granting a hardship exception to a Narragansett Zoning Board member who sought a variance to use his current residence as a detached guesthouse, given that the property served as his primary residence, his ownership predated his appointment to public office by more than 30 years, and the relief sought was necessary to enter into a purchase and sales agreement with the only prospective buyer in years); A.O. 2010-32 (granting a hardship exception to a Barrington Zoning Board member who sought a variance to construct a new home on a legal nonconforming lot, in view of the fact that the property would serve as his primary residence, and it was located in the same neighborhood where petitioner had lived for more than nine years, thereby enabling his children to remain at the same school); A.O. 2010-9 (granting a hardship exception to an Exeter Zoning Board member who sought a dimensional variance to install an above-ground swimming pool at his personal residence, based on the petitioner’s representations that the relief sought was for his personal residence, his ownership in the subject property predated his public service, and the relief sought did not implicate any commercial interests). In contrast, in those instances in which the Commission has declined to grant a hardship exception, the circumstances generally have been distinguishable from those in the present matter. In Advisory Opinion 2000-41, an Exeter Zoning Board member sought a special use permit to construct a cellular communications tower on his property. The Commission declined to grant a hardship exception on the basis that the property interest related to a commercial venture, the purpose of which was to generate additional income for the petitioner, and did not, therefore, trigger application of the hardship exception. See also Advisory Opinion 97-146 (deciding that a North Kingstown Zoning Board member’s proposed conduct did not qualify for a hardship exception, because the subject property did not involve his principal residence or place of business, but instead, was a private business venture). In the present matter, Petitioner seeks a dimensional variance in order to construct a second-story dormer with windows on the southeast side of his primary residence, the side that does not face Hundred Acre Cove. He has owned this property, his primary and only residence, since 1979, which significantly predates his appointment to the Zoning Board in 2009. The zoning relief he seeks is for personal use and not related to any commercial or business venture. Based on the above representations and prior advisory opinions on point, it is the opinion of the Ethics Commission that the totality of the circumstances warrants application of the hardship exception to section 36-14-5(e)’s prohibitions. Accordingly, the Petitioner may appear, personally or through counsel, before the Zoning Board to request a dimensional variance for his personal residence. Petitioner, however, must recuse himself from participating and voting in the Zoning Board’s consideration of his request for relief. Notice of recusal must be filed with the Ethics Commission in compliance with section 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, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2013-6 A.O. 2011-34 A.O. 2010-32 A.O. 2010-9 A.O. 2000-41 A.O. 97-146 Keywords: Hardship Exception Property Interest