Advisory Opinion No. 2015-25 Rhode Island Ethics Commission Advisory Opinion No. 2015-25 Approved: May 19, 2015 Re: Robert Kempenaar, II QUESTION PRESENTED: The Petitioner, a member of the Middletown 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 the Middletown Zoning Board and the Middletown Planning Board in order to construct a new gate lodge/lobby at a Howard Johnson Inn that he owns, which will bring the motel into compliance with the Howard Johnson brand specifications. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Middletown Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before the Middletown Zoning Board and the Middletown Planning Board in order to construct a new gate lodge/lobby at a Howard Johnson Inn that he owns, which will bring the motel into compliance with the Howard Johnson brand specifications. The Petitioner is a member and the Vice President of the Middletown Town Council (“Town Council”), having been elected to his first term in November 2014. He represents that he is the sole owner of Kempenaar Real Estates, Inc., which owns the Howard Johnson Inn (“Motel”) located at 351 West Main Road in Middletown. He states that he has had an ownership interest in the 115-room Motel since it was built in 1969 on a large tract of land owned by his extended family. He informs that he has operated the Motel for the past thirty years and has been the sole owner of the Motel since 1999. The Petitioner represents that he works full time at the Motel, which serves as his primary place of business and primary source of occupational income.[1] The Petitioner represents that the Motel’s original 46-year-old gate lodge/lobby is too small for the current needs of the Motel’s guests and it does not conform to the requirements of the Howard Johnson brand that include a larger breakfast area and a conference room. Therefore, he states that he would like to tear down and replace the Motel’s original gate lodge/lobby. He informs that the proposed new gate lodge/lobby would increase the footprint of the building from the current 2800 square feet to approximately 6000 square feet. He represents that this increase in size will enable the Motel to provide its guests with a large breakfast area and conference room, in addition to offices for him and the Motel staff. The Petitioner states that the Town of Middletown (“Town”) requires property owners to obtain special use permits from the Middletown Zoning Board (“Zoning Board”) prior to issuing a building permit for new construction or expansion of motels and hotels. Accordingly, he states that he has applied to the Zoning Board for a special use permit. He represents that, upon receipt of his application, the Zoning Board will automatically refer it to the Middletown Planning Board (“Planning Board”) for site plan review. He states that the Planning Board will then send a written report to the Zoning Board regarding its opinion on whether to grant or deny his special use permit. Finally, the Zoning Board will hold a public hearing on the Petitioner’s application for a special use permit and then decide whether or not to grant the permit. If the Petitioner receives the special use permit, he states that he will then seek a building permit from the Town’s Building/Zoning Official, as well as approval from the Town’s Fire Marshall and Fire Chief. The Petitioner represents that his special use permit is scheduled to be considered by the Zoning Board on April 28, 2015, then referred to the Planning Board and sent back to the Zoning Board shortly thereafter. The Petitioner informs that the lodging industry on Aquidneck Island is seasonal, with the busy tourist season lasting from April to October. He states that, unlike other local hotels, he operates the Motel year round, but notes that he generally does not make a profit in the off-season from October to April. He represents that, notwithstanding the slower business, he employs 32 staff members during the off-season and 46 staff members during the peak season. As a result, he states that a timely decision from the Zoning Board is necessary to begin construction this summer. He represents that he plans to start construction on the rear half of the new structure behind the existing gate lodge/lobby this summer. He informs that in October, once business slows down, he would demolish the existing gate lodge/lobby and build the remaining half of the new structure in its place. He represents that this plan would have the least impact upon his staff, guests and the overall operation of the Motel. He states that he hopes to have the new gate lodge/lobby completed by April 2016. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to allow him to represent himself before the Zoning Board and the Planning Board, over which he has appointing authority as a member of the Town Council, in order to obtain a special use permit necessary for bringing his Motel into compliance with the Howard Johnson Brand specifications. 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 has previously granted hardship exceptions to municipal public officials in order to seek relief related to commercial ventures that were primary sources of income to the official and that predated their public service. See A.O. 2014-10 (granting a hardship exception to a Glocester Town Council member and permitting him to represent himself before the Glocester Town Council to renew an Earth Removal License for a property that had been in his family for six generations, given that the License was first granted to his father (and later transferred to the petitioner and his brother) more than ten years prior to his election, and the sand and gravel excavated at this property was used for his work as an excavating contractor, which was his primary source of income); 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. 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 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 years prior to his election to the Town Council). In the present matter, the Petitioner would like to replace the outdated and small gate lodge/lobby at the Motel that he owns and operates in Middletown. He states that these changes would allow him to better serve his guests and comply with the Howard Johnson brand requirements. He has operated the Motel for thirty years and has been the sole owner since 1999, approximately fifteen years prior to his election to the Town Council. He represents that if he does not receive the special use permit this spring, he will have to wait until summer 2016 to begin construction, given his bifurcated plan of building the rear part of the structure first, while leaving the existing building in place until the off-season. 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 justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may represent himself, either personally or through legal counsel, before the Zoning Board, Planning Board, Town Building Official, Fire Chief and Fire Marshall, to obtain the permits necessary for constructing a new gate lodge/lobby at his Motel. 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 permit applications before both Boards, including any appeals. The Petitioner must also recuse from any decisions regarding the continued employment, appointment or reappointment of the Town’s Building/Zoning Official, Fire Marshall and Fire Chief until after the election cycle for his Town Council seat following the complete resolution of these permit applications, 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. 2014-10 A.O. 2014-4 A.O. 2012-16 A.O. 2012-4 A.O. 2011-33 A.O. 2011-28 A.O. 2009-18 A.O. 2007-51 A.O. 2007-42 A.O. 2007-19 A.O. 2001-29 Keywords: Hardship Exception Property Interest [1] The Petitioner represents that he also owns a 35% interest in three other local hotels and derives rental income from other properties that he owns, including the Applebee’s Restaurant location that is adjacent to the Motel at 349 West Main Road and the nearby Middletown location of the United States Post Office.