Advisory Opinion No. 2017-31 Rhode Island Ethics Commission Advisory Opinion No. 2017-31 Approved: June 20, 2017 Re: Robert V. Russo, Esq. QUESTION PRESENTED: The Petitioner, a member of the Johnston 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 Johnston Zoning Board, over which the Town Council has appointing authority. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Johnston Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before the Johnston Zoning Board, over which the Town Council has appointing authority. The Petitioner has been a member of the Johnston Town Council (“Town Council”) for the past twenty-three (23) years. He represents that, three years ago, in addition to his personal residence, he purchased a property consisting of a residential home and a separate small studio apartment. The Petitioner states that the studio apartment was utilized as a rental unit by the previous owner and that he planned to continue renting the property. However, in order to continue utilizing the studio apartment as a rental unit, he has to apply for a zoning variance from the Johnston Zoning Board (“Zoning Board”) as such a variance was not obtained by the prior owner. Given this set of facts, the Petitioner is seeking the guidance of the Ethics Commission regarding whether he may appear before the Zoning Board to seek a zoning variance in order to bring the studio apartment into conformity with the Town’s Zoning Ordinance. The Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed or for which he is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1), (2) & (3) (“Regulation 5016”). Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, the prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Upon receiving a hardship exception, 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). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing oneself before an agency over which one has appointing authority. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by the Petitioner herein justify a finding of hardship to permit him to appear before the Zoning Board. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered some of the following factors in cases involving real property: whether the subject property involved the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to his public office or was recently acquired; whether the relief sought involved a new commercial venture or an existing business; and whether the matter involved a significant economic impact. The Ethics Commission may consider other factors and no single factor is determinative. Previously, the Ethics Commission has applied the hardship exception in circumstances that present somewhat analogous situations. In Advisory Opinion 2014-7, for example, the Ethics Commission granted a hardship exception to a member of the Coventry Zoning Board of Review permitting him to appear before his own board in order to seek a dimensional variance for a mixed-use rental property that he owned. There, the petitioner and the owner of the neighboring property were in a property line dispute resulting in the neighbor erecting a fence between the two properties, which denied the petitioner the ability to wheel his small dumpster to the curb on collection day. Thus, in order to remedy the situation, the petitioner had to seek a dimensional variance from the Zoning Board. The Ethics Commission based its decision primarily on the facts that the petitioner had been a member of the Zoning Board for more than 30 years, he owned the property for about 5 years, and that, but for the actions of the neighbor, the variance would not have been necessary. Furthermore, in Advisory Opinion 2010-19, the Ethics Commission granted a hardship exception to an alternate member of the Newport Zoning Board to appear before his board in order to appeal the denial of a building permit to refurbish unused space for commercial rental use within a residential rental property. There, the Ethics Commission considered the following facts: the petitioner’s ownership predated his public service; the desired use as a commercial storefront rental was consistent with the previous use of that space for approximately 150 years, albeit prior to his own ownership interest; and the least burdensome and most practical use of the space was as a commercial storefront rather than undergoing an expensive conversion into residential space, which would be structurally difficult and still require his appearance before the Zoning Board. In the present matter, the Petitioner represents that he will seek a variance for a residential property that he has owned for three years. He has served on the Town Council for over twenty-three (23) years. Furthermore, prior to the Petitioner’s purchase of the property, the studio apartment had already been used as a rental property. 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 a representative, before the Zoning Board relative to his application for a zoning variance. However, in order to avoid an 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 the 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. 2014-4 A.O. 2014-7 A.O. 2010-19 Keywords: Hardship Exception Property Interest