Advisory Opinion No. 2016-8 Rhode Island Ethics Commission Advisory Opinion No. 2016-8 Approved: February 23, 2016 Re: David M. Gleason QUESTION PRESENTED: The Petitioner, a member of the Portsmouth 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 Portsmouth Zoning Board of Review in order to seek a dimensional variance for his personal 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, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before the Portsmouth Zoning Board of Review in order to seek a dimensional variance for his personal residence. The Petitioner is a member of the Portsmouth Town Council (“Town Council”), having been first elected to a two-year term in 2012 and subsequently re-elected to a second two-year term in 2014. He represents that he and his wife would like to install an above-ground swimming pool, 18 feet in diameter and 4 feet high, in the backyard of their primary residence in Portsmouth. He states that he and his spouse purchased this property in 1981, built a house thereon and have resided there since 1983. He represents that this is the most suitable and practical location for the swimming pool. He informs the purpose of the swimming pool is solely for the personal use and enjoyment of his extended family. The Petitioner represents that prior to installing this swimming pool he will need to seek a dimensional variance from the Portsmouth Zoning Board of Review (“Zoning Board”). He states that his residence is located in the R10 zoning district, which requires a minimum setback of 20 feet from both the front and rear property lines. He informs that, although his lot is 147.5 feet wide, it is only 80 feet deep and, thus, the most suitable location for the swimming pool will encroach on the 20 foot rear-yard setback by 8.5 feet. He states that he does not anticipate any objections from abutters. Furthermore, he owns the property directly abutting his east side-yard, which he rents to his son, and the rear property line (south) directly abuts National Grid’s power transmission easement. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to permit him to represent himself before the Zoning Board, over which he has appointing authority as a member of the Town Council, in order to obtain a dimensional variance prior to installing an above-ground swimming pool in his backyard. 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 state or municipal agency of which they are a member or by which they are employed. Regulation 5016(a)(2). These prohibitions 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 “follow 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. 2015-25; A.O. 2015-18; 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 2010-9, in which a member of the Exeter Zoning Board of Review asked if he could represent himself before his own board in order to seek a dimensional variance from the rear setback requirement in order to install an above-ground swimming pool at his primary residence. There, the Commission granted him a hardship exception based upon the petitioner’s representations that it involved his personal residence, which was purchased three years prior to his appointment to the Exeter Zoning Board, and the purpose of the swimming pool was for the personal use and enjoyment of his family. See also A.O. 2014-4 (granting a hardship exception to a Portsmouth Town Council member and opining that he could represent himself before the Portsmouth Zoning Board to seek dimensional variances from the setback requirement and the lot coverage requirement in order to construct a removable wooden cover over his existing above-ground septic tank, to create more usable space in his backyard); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member and opining that she could represent herself before her own board in order to seek a dimensional variance from the side-yard setback to build a storage shed at her personal residence that she acquired prior to her appointment to the Board). In the present matter, the Petitioner would like to install an above-ground swimming pool in the backyard of his personal residence , which he has owned since 1981 and resided at since 1983, nearly thirty years prior to his election to the Town Council . H e represents that the swimming pool would be for the personal use and enjoyment of his extended family. He states that he must first receive a dimensional variance from the Zoning Board because the swimming pool would encroach on the required 20 foot rear-yard set back by 8.5 feet. He informs that his rear property line abuts National Grid’s power transmission easement. 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 his spouse or legal counsel, before the Zoning Board relative to seeking a dimensional variance for his personal residence . 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 until after the election cycle for his Town Council seat following the complete resolution of this application before the Zoning Board , 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. 2015-25 A.O. 2015-18 A.O. 2015-8 A.O. 2014-4 A.O. 2012-16 A.O. 2012-4 A.O. 2011-34 A.O. 2011-28 A.O. 2010-9 A.O. 2009-18 A.O. 2007-51 A.O. 2007-42 A.O. 2007-19 Keywords: Hardship Exception Property Interest