Advisory Opinion No. 2017-16 Rhode Island Ethics Commission Advisory Opinion No. 2017-16 Approved: April 4, 2017 Re: William J. Penn QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Historic District Commission, a municipal appointed position, requests an advisory opinion concerning whether he may represent himself before the Historic District Commission to seek permission to replace the storm doors on his home. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham Historic District Commission, a municipal appointed position, is authorized to represent himself before the Historic District Commission to seek permission to replace the storm doors on his home, provided that he recuses from his board’s consideration of the matter. The Petitioner is the Chair of the New Shoreham Historic District Commission (“HDC”), having been originally appointed by the New Shoreham Town Council in 2008. He represents that in 1977 he purchased a home, built in 1825, that is located within New Shoreham’s Historic District. He states that his home is in need of new storm/screen doors, and that prior to installing the doors he must obtain a certificate of appropriateness from the HDC. The Petitioner states that he intends to recuse from the HDC’s consideration of his application but understands that he must obtain a waiver from the Ethics Commission prior to representing himself before his own board. Section 36-14-5(e) of the Code of Ethics (“section 5(e)”) 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 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. A somewhat analogous fact pattern was presented in Advisory Opinion 2001-30, where the Ethics Commission granted a hardship exception to the Senior Assistant Solicitor for Providence, who served as legal counsel to the Providence Historic District Commission (“HDC”), permitting him to appear before the HDC for permission to make repairs to a rental property he had owned for several years. The Commission reasoned that, absent his ability to appear before the HDC, his property would fall into disrepair. 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 to 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 seeks a certificate of appropriateness from the HDC to install two screen doors on his home, a historic property that he has owned since 1977. He notes that storm doors are a necessity of island living and have a short life due to local weather conditions. Considering the Petitioner’s representations, and consistent with our past 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 represent himself before the HDC to obtain approval to install storm doors on his home. The Petitioner must recuse from participation and vote in the HDC’s consideration of his application. Notice of recusal must be filed with the Ethics 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, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Regulation 36-14-5016 Related Advisory Opinions: A.O. 2014-4 A.O. 2011-34 A.O. 2001-30 Keywords: Hardship Exception Property Interest