Advisory Opinion No. 2016-19 Rhode Island Ethics Commission Advisory Opinion No. 2016-19 Approved: May 24, 2016 Re: Colin Hynes QUESTION PRESENTED: The Petitioner, an alternate member of the Narragansett Zoning Board of Review, a municipal appointed position, who in his private capacity is a landscape architect, requests an advisory opinion regarding how he can avoid potential conflicts of interest related to his private clients’ variance application before the Narragansett Zoning Board of Review. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an alternate member of the Narragansett Zoning Board of Review, a municipal appointed position, who in his private capacity is a landscape architect, is prohibited by the Code of Ethics from: 1) participating in any and all aspects of the Narragansett Zoning Board of Review’s consideration of his clients’ variance application; and 2) representing his clients before his own board while serving as a member and for one year after his official severance from the board. The Petitioner is an alternate member of the Narragansett Zoning Board of Review (“Zoning Board”), having been appointed there to by the Narragansett Town Council in October 2015. He states that the Zoning Board consists of five member and two alternates. In his private capacity, the Petitioner represents that he is a licensed professional landscape architect. He states that he is the sole owner of Elemental Designs, LLC, a landscape architecture firm located in Narragansett. The Petitioner represents that in January 2016 he began providing design services to Rebecca Szura and Thomas Malloy, the owners of a house located at 17 Hills Parkway in Narragansett. He states that this house is on a legally created substandard lot with an area of .08 acres in an R-10 zone. He informs that the house is a raised ranch with a raised wooden deck on the front of the house and a small wooden deck/landing with stairs at the rear of the house. He represents that his clients would like to replace and expand both the front and rear decks. He states that, given the small size of this property, any expansion of the existing footprint will likely require dimensional variances from the front and rear set back requirements. Cognizant of the Code of Ethics’ revolving door provisions, the Petitioner seeks guidance as to how he can avoid a conflict of interest but still enable his clients to apply for the zoning relief necessary for the expansion of their decks. The Petitioner represents that he will recuse from any and all aspects of the Zoning Board’s consideration of his clients’ variance application. He states that his name will not appear on the design plans included in his clients’ application. He further states that his clients will find another licensed professional to submit the design plans to the Zoning Board. Section 5(e) of the Code of Ethics strictly prohibits public officials and employees from representing themselves, representing another person, or acting as an expert witness 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), (2) & (3); see also Commission Regulation 36-14-5016 (defining representation of oneself or others). 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). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one year thereafter. Section 36-14-5(e)(4). Notably, section 5(e)’s prohibitions on representation are not cured by recusal alone. The Ethics Commission may grant an exception, pursuant to section 36-14-5(e)(1), to allow a public official to represent himself or another person before an agency of which he is a member based upon a finding that a denial of such permission would result in a hardship to the official. However, the Commission has generally declined to grant hardship exceptions where the property involved was not the petitioner’s primary residence or principal place of business but, rather, was related to the petitioner’s commercial interests or private business endeavors. For example, in Advisory Opinion 2016-17 the Commission declined to grant a hardship exception to a former member of the Newport Historic District Commission (“HDC”) who wished to represent his private clients’ application for a Certificate of Appropriateness before the HDC prior to the expiration of his one-year waiting period. There, given that the property involved was owned by the petitioner’s clients and the application related to the petitioner’s private business endeavors, the Commission concluded that the facts did not qualify for a hardship exception. See also A.O. 2000-41 (declining to grant a hardship exception to a member of the Exeter Zoning Board of Review who sought a special use permit from his own board for the purpose of installing a cellular tower on his residential property, given that the proposed commercial venture served only to generate additional income for the petitioner); A.O. 99-126 (declining to grant a hardship exception to a member of the Barrington Technical Review Board who sought to represent the clients of his architectural firm before his own board relative to his clients’ proposed project in Barrington because the project related to the petitioner’s private business endeavors and not his primary residence or place of business). Similar to Advisory Opinion 2016-17, the facts represented herein do not support granting a hardship exception to the Petitioner because the property involved is not the Petitioner’s personal residence or primary place of business and the relief sought from the Zoning Board is related to his private business endeavors. Although ineligible for a hardship exception, the Commission has permitted a board member’s private clients to appear before his board provided that the board member recused from all participation in his clients’ application. See, e.g., A.O. 2005-15 (opining that a civil engineer employed by the Rhode Island Department of Environmental Management (“DEM”) could accept part-time private employment at a firm that submitted plans to DEM, based upon his representations that his private employment did not relate to his official duties at DEM, he would not represent his private employer before DEM, and none of the plans that he prepared for his private employer would bear his professional engineer’s stamp or his name); A.O. 2001-51 (opining that a member of the Barrington Technical Review Committee (“TRC”) could accept private employment as an architect for the Center Village elderly housing development provided that: he did not disclose confidential information acquired by him in the course of his duties for financial gain; he did not appear before the TRC on behalf of the Center Village Project; and he recused from participation and/or vote in the TRC’s consideration of the project). In the instant matter, section 36-14-5(e)(1) clearly prohibits the Petitioner from representing his clients before the Zoning Board and we find that the circumstances represented herein do not qualify for a hardship exception. However, the Petitioner’s clients may seek the zoning relief necessary for the replacement of their front and rear decks provided that the Petitioner recuses from the Zoning Board’s consideration of his clients’ variance application. Accordingly, it is the opinion of the Ethics Commission that the Petitioner, an alternate member of the Zoning Board, who in his private capacity is a landscape architect, is prohibited by the Code of Ethics from: 1) participating in any and all aspects of the Zoning Board’s consideration of his clients’ variance application; and 2) representing his clients before his own board while serving as a member and for one year after his official severance from the board. 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. 2016-17 A.O. 2005-15 A.O. 2001-51 A.O. 99-126 Keywords: Hardship Exception Private Employment Recusal