Advisory Opinion No. 2015-18 Rhode Island Ethics Commission Advisory Opinion No. 2015-18 Approved: April 14, 2015 Re: Jon M. Restivo, Esq. QUESTION PRESENTED: The Petitioner, a member of the Foster Town Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before boards over which the Foster Town Council has appointing authority, the Foster Zoning Board and the Foster Planning Board, in order to establish a residential compound on the property of his personal residence. 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, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before boards over which the Foster Town Council has appointing authority, the Foster Zoning Board and the Foster Planning Board, in order to establish a residential compound on the property of his personal residence. The Petitioner is a member of the Foster Town Council (“Town Council”), having been elected to his first term in November 2014. He represents that he was a member of the Foster Planning Board (“Planning Board”) from January 2014 until his resignation in December 2014, prior to being sworn in as a member of the Town Council. He states that he has lived in the Town of Foster (“Town”) since 2011. The Petitioner represents that his primary residence, which he purchased in July 2014, is situated on a 52-acre parcel of land along with a vacant outbuilding that was previously used as a commercial office building. He states that he and his spouse would like to convert that outbuilding into a residence for his mother-in-law and father-in-law (collectively “in-laws”). He represents that he and his spouse are eager to help his in-laws and have them move onto their property, especially given his mother-in-law’s medical issues. He further states that he and his spouse currently have no other use for this outbuilding and have no intention of selling any portion of their property at this time. The Petitioner states that the Town requires property to be established as a residential compound in order to have multiple residences on one parcel. He states that the Town’s zoning ordinance requires a property owner to live at that property for at least five years prior to applying for a residential compound designation. Therefore, he explains that he and his spouse must seek a variance from the Foster Zoning Board (“Zoning Board”), because they have only owned the property since July 2014. If they receive a variance, the Petitioner states that he and his spouse will submit an application to the Planning Board in order to establish the property as a residential compound. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to permit him to represent himself before the Zoning Board and Planning Board, over which he has appointing authority as a member of the Town Council, in order to obtain permission to convert an existing outbuilding on his personal property into a residence for his in-laws. 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) (1) ; 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 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 over which the public official is a member of the appointing authority. Regulation 5016(a)(3). Section 5(e)’s prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(4). 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 the Ethics Commission to grant exceptions, in certain circumstances, to allow a public official to represent him or herself before his or her own agency , or an agency over which he or she has appointing authority, based upon a finding that a denial of such self-representation would result in a hardship. Upon receiving a hardship exception, the public official is required to recuse from participating in his or her agency’s consideration and disposition of the matter at issue. Section 36-14- 5(e)(1)(ii). The public official must also “[ f ] ollow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14- 5(e)(1)(iii). See, e.g. , A.O. 2014-4 (granting a hardship exception to a member of the Portsmouth Town Council and permitting him to represent himself before the Portsmouth Zoning Board in order to seek a variance for his personal residence, provided that, in order to avoid any appearance of impropriety, he recused from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle following the resolution of his applications for zoning relief). See also A.O. 2015-8 ; A.O. 2012-16; A.O. 2012-4; A.O. 2011-28; A.O. 2009-18; A.O. 2007-51; A.O. 2007-42; A.O. 2007-19. 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; and whether the relief sought involves a new commercial venture or an existing business. The Commission considers the totality of the circumstances and no single factor is determinative. The Commission considered a similar fact pattern in Advisory Opinion 2012-16, in which a member of the Foster Town Council requested a hardship exception so he could appear before the Foster Zoning and Planning Boards to establish a residential compound on the property of his p ersonal residence. There, the petitioner had owned the property since 1999, prior to his election to the Town Council in 2010 . He wished to establish his 32-acre property as a residential compound in order to provide portions of his land to his son and daughter on which they could build their own homes. He also stated that he had no intention of selling any portion of his land. Considering that his request involved the property of his personal residence, his ownership predated his election to the Town Council, and the relief sought was not for a commercial use, the Commission granted him a hardship exception to appear before the Zoning and Planning Boards. The Commission has a lso granted hardship exceptions to town council member s who sought permission to represent themselves before zoning and planning boards, over which they had appointing authority, in order for their relatives to live in a separate building on the property of their personal residence s . See A.O. 200 7-51 (granting a hardship exception to a Portsmouth Town Council member, who owned two adjacent lots containing her primary residence and a garage, and opining that she or her spouse could appear before the Portsmouth Zoning Board to seek a variance to tear down her garage and replace it with a new residence for her and her spouse and then have her adult son move into her current residence); A.O. 2007-19 (granting a hardship exception to a Little Compton Town Council member , whose primary residence was one of two houses owned by his mother and located on a single substandard lot, and opining that he could appear before the Little Com pton Zoning and Planning Boards to seek a subdivision variance for the property in order for his mother to gift his residence to him and the second home to his siblings). See also A.O. 2009-18; A.O. 2007-42. In the present matter, the Petitioner would like to convert an existing outbuilding on the 52-acre property of his personal residence into a residence for his in-laws. He represents that he and his spouse would like to help his in-laws and have them close by because of his mother-in-law’s medical issues. He states that they currently have no use for the outbuilding and that they have no intention of selling any portion of their land at this time. He informs that he must receive a variance from the Zoning Board and approval from the Planning Board for a residential compound prior to converting this outbuilding into a residence. Considering the Peti tioner’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 justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may represent himself , either personally or through his spouse or legal counsel , before the Zoning Board and Planning Board relative to establishing a residential co mpound on his personal property. However, in order to help avoid any appearance of impropriety, the Petitioner must recuse from the Town Council’s appointment or reappointment of any persons to the Zoning Board or Planning Board until after the election cycle for his Town Council seat following the complete resolution of these applications before both Boards , including any appeals . Notice of recusal shall be filed with the Ethics Commission in accordance 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. 2015-8 A.O. 2014-4 A.O. 2012-16 A.O. 2012-4 A.O. 2011-28 A.O. 2009-18 A.O. 2007-51 A.O. 2007-42 A.O. 2007-19 Keywords: Hardship Exception Property Interest