Advisory Opinion No. 2014-9 Rhode Island Ethics Commission Advisory Opinion No. 2014-9 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 provide public comment on a zoning change application for which he received notice as an abutter. 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 provide public comment on a zoning change application for which he received notice as an abutter, provided that he recuses from the Glocester Town Council’s discussion and vote regarding the zoning change. The Petitioner is a member of Glocester Town Council (“Town Council”), having been elected to his first term in 2008. He states that he owns two (2) single family houses situated on the same lot at 150 Victory Highway in Glocester (“Victory Highway property”). He represents that he rents the houses to two (2) separate tenants. He further states that he has owned the Victory Highway property for approximately twenty-five (25) years. The Petitioner represents that the Bella Vista Group, LLC (“Bella Vista”) has petitioned the Town for a zoning change for Assessor’s Plat 10, Lots 105, 106, 106A and 116. He states that this property is currently zoned A-4 (agricultural-4 acres) and is presently used as a gravel pit. He informs that Bella Vista has asked for this property to be re-zoned as a Planned District[1] that would accommodate seventy (70) condominium units on thirty-six (36) acres and commercial development on fourteen (14) acres. The Petitioner informs that he received an abutter’s notice for this zoning change application given the close proximity of his Victory Highway Property. Cognizant of the Code of Ethics, the Petitioner states that he will recuse from the Town Council’s consideration of Bella Vista’s zoning change request, which is scheduled for a public hearing on April 17, 2014. However, he represents that as an abutting property owner, town resident, and taxpayer he would like to have the opportunity to speak during the public hearing on this matter. 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 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 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 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 primarily commercial venture; and whether the official’s interests were brought before an agency as a result of the actions of a third party. Under a totality of the circumstances analysis, no single factor is determinative. The Commission has previously granted hardship exceptions to municipal board members, permitting them to appear before their own boards to provide public comment relative to a zoning application for which they received notice as an abutter. See A.O. 2013-40 (granting a hardship exception to a Pawtucket Zoning Board member and permitting him to appear before his own board to oppose a use variance application for a property that abutted his primary residence that he had owned for over twenty-five (25) years, significantly predating his appointment to the Zoning Board in 2012); A.O. 2012-4 (granting a hardship exception to a Westerly Town Council member and permitting him to appear before the Westerly Planning Board, the Westerly Zoning Board and the Westerly Town Council to oppose the proposed development of property directly abutting his personal residence that he had owned for twelve (12) years prior to his election); A.O. 2003-33 (granting a hardship exception to a Smithfield Zoning Board member and his spouse and permitting them to appear before the Zoning Board to testify regarding a petition to locate a church directly across the street from their residential property); A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor to appear before the Zoning Board to oppose a zoning application for property abutting his personal residence, based upon the fact that the matter was brought to the Zoning Board through no action of his own and it involved his personal residence that he had owned since 1981). In the present matter, the Petitioner has owned the Victory Highway property for approximately twenty-five (25) years, significantly predating the beginning of his service on the Town Council in 2008. He states that he will recuse from the Town Council’s consideration of the Bella Vista zoning change petition, but would like the opportunity to participate in the public hearing and share his opinion on the development given his status as an abutter, a Town resident and a taxpayer. 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 provide public comment during the hearing of Bella Vista’s zoning change application, provided that he recuses from all participation and voting in any matter involving Bella Vista’s application. Thereafter, the Petitioner’s right to address the Town Council is the same as any other abutter or member of the public, with no special access or priority. 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. 2013-40 A.O. 2012-4 A.O. 2003-33 A.O. 2000-45 Keywords: Hardship Exception Property Interest