Advisory Opinion No. 2014-4 Rhode Island Ethics Commission Advisory Opinion No. 2014-4 Approved: January 28, 2014 Re: James A. Seveney QUESTION PRESENTED: The Petitioner, a member of the Portsmouth Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from appearing before the Portsmouth Zoning Board of Review relative to the construction of a deck for his primary residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Portsmouth Town Council, a municipal elected position, is authorized to appear before the Portsmouth Zoning Board of Review relative to the construction of a deck for his personal residence, provided that he recuses from the Town Council’s appointment or reappointment of any person to the Zoning Board of Review until after the election cycle for his Town Council seat following the resolution of his applications for zoning relief. The Petitioner has been a member of the Portsmouth Town Council (“Town Council”) since November 2004 and currently serves as its President. He represents that his principal and only residence is located at 72 Macomber Lane in Portsmouth, where he has resided since July 2007.[1] After moving in the Petitioner made plans to renovate his house, which was built in 1940. To that end he sought an advisory opinion and was authorized to appear before the Portsmouth Zoning Board of Review (“Zoning Board”) in order to seek a variance necessary for the renovations. See Advisory Opinion 2007-42. Currently, the Petitioner represents that the renovations of 72 Macomber Lane are nearly complete. He informs that the final project is the construction of a deck with a removable wooden cover over an existing septic tank that is located directly behind his existing deck on the east side of the house. He represents that the septic tank area, which sits above ground level, is enclosed by landscaping timbers and takes up 200 square feet (12’ x 16.5’) of his backyard. He states that this area of his yard is currently unusable space. He represents that the proposed removable wooden deck cover would allow him to use this space as an additional deck area while still keeping it accessible for septic system maintenance. The Petitioner states that his house is on a substandard lot abutting the Sakonnet River on its eastern border, to the rear of the house. He represents that the existing septic system was installed above grade level due to the shallow depth of a slate ledge. He informs that the construction of this deck will require a variance for lot coverage because the wooden deck would cause his property to exceed the lot coverage limitation of 20%. He states that with the proposed deck his lot coverage would increase to approximately 22.5%. He also states that the construction of the deck will require a dimensional variance because it would infringe upon the 15-foot side yard setback on the south side of his house by 3.5 feet. In addition, the Petitioner states that he must apply for a special use permit because his house is on a substandard lot. He represents that the purpose of constructing the deck is to increase the personal use and enjoyment of his residence for himself and his family. He states that there is no other reasonable use of this space. Cognizant of the Code of Ethics’ prohibition on appearing before the Zoning Board because he is a member of its appointing authority, the Town Council, the Petitioner seeks a hardship exception to allow him to apply for the required relief for his personal residence. 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) (“Regulation 5016”). 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. Regulation 5016(a)(2). These prohibitions also include matters before another agency for which the public official is the appointing authority. Regulation 5016(a)(3). These prohibitions continue while the public official remains in office and for a period of one 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 access to government would result in a hardship. 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 his or 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. The Commission previously granted a hardship exception to this same Petitioner in Advisory Opinion 2007-42 based on the Petitioner’s representations that the variance was for his principal residence, which he inherited in 2006 from his mother, who owned the property prior to his election to the Town Council in 2004. However, in order to lessen any appearance of impropriety, the Commission instructed the Petitioner to recuse from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle following the resolution of the Petitioner’s variance applications. See also A.O. 2007-19 (granting a hardship exception to a Little Compton Town Council member and permitting him to appear before the Little Compton Zoning and Planning Boards in order to seek a subdivision variance, which would allow his mother to gift to him a house that was his personal residence prior to his election to the Town Council). In the present matter, the Petitioner seeks to apply to the Zoning Board for the zoning relief required to complete the final renovations of his primary and only residence. He would like to construct a removable wooden deck cover for his septic tank to make use of a currently unusable space in his backyard. Considering the Petitioner’s above representations, Advisory Opinion 2007-42 and our past 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, either personally or through counsel, before the Zoning Board relative to the construction of a deck for his personal residence. However, the Petitioner is required to recuse from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle following the resolution of the Petitioner’s applications for zoning relief. Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2007-42 A.O. 2007-19 Keywords: Hardship Property Interest 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.