Advisory Opinion No. 2017-37 Rhode Island Ethics Commission Advisory Opinion No. 2017-37 Approved: August 8, 2017 Re: Roger F. Winiarski QUESTION PRESENTED: The Petitioner, a member of the Tiverton Harbor and Coastal Water Management Commission, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before his own agency in order to appeal a denial of his mooring registration renewal application. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Harbor and Coastal Water Management Commission, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before his own agency in order to appeal a denial of his mooring registration renewal application. The Petitioner represents that he has been a member of the Tiverton Harbor and Coastal Water Management Commission (“Harbor Commission”) for the past 20 years. In his private capacity, the Petitioner states that his primary source of income derives from a small business in Tiverton that specializes in the design and manufacturing of bronze fittings for traditional and classic yachts. He states that he has owned the business for 28 years. The Petitioner represents that, since 1967, he has continuously owned a mooring, located in close proximity to his business, that serves as a guest mooring for his clients who arrive at his shop by boat. He states that the Tiverton Harbor Master (“Harbor Master”) denied his application to renew his mooring registration, requiring him to either remove the mooring or relocate it. The Petitioner represents that the Harbor Master’s denial is appealable to the Harbor Commission. The Petitioner states that the Chairperson of the Harbor Commission has asked the Harbor Master to stay any actions in furtherance of the denial of the Petitioner’s application pending an advisory opinion from the Ethics Commission as to whether the Petitioner qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the Harbor Commission of which he is a member. 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). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition against representing himself before his own agency. 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 Harbor Commission. Section 36-14-5(e)(1) specifically authorizes the Ethics Commission to grant exceptions, in certain circumstances, to allow a public official to represent himself before his own agency 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 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 is 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; whether the matter involved a significant economic impact; and whether the official’s interests were brought before an agency as a result of the actions of a third party. The Ethics Commission may consider other factors and no single factor is determinative. Previously, the Ethics Commission has granted hardship exceptions to municipal officials in order to seek relief related to commercial ventures that were the official’s primary source of income and predated their public service. See A.O. 2015-8 (granting a hardship exception to a Woonsocket City Councilor member in order to appeal the tangible property tax assessed against a business that he owned and operated for 8 years prior to his election to the City Council); A.O. 2014-10 (granting a hardship exception to a Glocester Town Council member in order 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 is related to the operation of a business, 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 Tiverton Harbor Master denied the Petitioner’s application to renew the registration of his mooring that he has owned since 1967, 30 years prior to his initial appointment to the Harbor Commission, and which he utilizes as a guest mooring in order to facilitate his business clients who arrive at his shop by boat. He further represents that he has owned his business, that is his primary source of income, for 28 years, 8 years prior to his appointment. 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 Harbor Commission to appeal the denial of the Harbor Master to renew Petitioner’s mooring registration, provided that he recuses from all participation and voting in any matter involving his appeal. 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. 2011-33 A.O. 2001-29 Keywords: Hardship Exception Property Interest