Advisory Opinion No. 2017-6 Rhode Island Ethics Commission Advisory Opinion No. 2017-6 Approved: February 7, 2017 Re: Thomas F. Holberton QUESTION PRESENTED: The Petitioner, a member of the Town of Hopkinton Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before his own board in order to establish a family residential compound on his property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of Hopkinton Planning Board, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before his own board in order to establish a family residential compound on his property. The Petitioner was appointed to the Town of Hopkinton Planning Board (“Planning Board”) in 2016, having previously served on the Planning Board from 1986 through 2007. The Petitioner represents that his primary residence is situated on a 95-acre parcel of land that his family purchased in 1957 and where, since 1962, it has operated a small woodworking business. The Petitioner explains that he has been the sole owner of the property since 2000 and that he built his personal residence there in 2001. The Petitioner states that he would like to establish the property as a residential compound in order to provide land to his children, on which they could build their own homes. The Petitioner further represents that he is not going to expand the small building he uses for his woodworking business and has no intention of putting any lots up for sale. Thus, the relief sought is personal and not tied to any commercial objective. Cognizant of the Code of Ethics’ prohibition against representing himself before his own board, the Petitioner requests an advisory opinion as to whether his situation justifies the application of the hardship exception, given that in order to establish a residential compound on his property he is required to apply to, and appear before, the Planning Board. The Code of Ethics prohibits a public official from representing himself before a state or municipal agency of which he is a member or by which he is employed, unless the Commission determines that a hardship exists. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1) (“Regulation 5016”). A public official is also prohibited from authorizing another person to appear on his behalf before a municipal agency of which he is a member or by which he is employed. Regulation 5016(a)(2). 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). Moreover, while many conflicts can be avoided under the Code of Ethics by recusing from participation, such recusal is insufficient to avoid section 5(e)’s prohibitions against representation absent an express finding by the Ethics Commission that a hardship exists. Section 5(e)(1) specifically authorizes the Ethics Commission to grant an exception, 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 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). The Ethics Commission reviews the applicability of the hardship exception on a case-by-case basis. In matters involving real property the Ethics Commission has focused on the totality of the circumstances including, but not limited to, factors such as: whether the subject property involves the official’s primary residence or primary place of business; whether the official’s interest in the property is pre-existing to his public office or was recently acquired; and whether the relief sought involves a primarily commercial venture. When considering the totality of the circumstances, no single factor is determinative. The Ethics Commission has granted hardship exceptions in similar circumstances. Most recently, in Advisory Opinion 2015-18, the Ethics Commission opined that a member of the Foster Town Council could appear before the Foster Planning Board and the Foster Zoning Board, over which the Foster Town Council had appointing authority,[1] in order to establish a residential compound on his 52-acre personal property and to convert an outbuilding into a residence for his in-laws. There, the Commission granted a hardship exception based on the petitioner’s representations that his ownership of the subject property predated his election to the Town Council and the relief sought was personal and not connected to any commercial objective. Also, in Advisory Opinion 2012-16, a member of the Foster Town Council received a hardship exception so he could appear before the Foster Zoning and Planning Boards to establish a residential compound on the property of his personal residence. There, the petitioner had owned the property since 1999, prior to his election to the Town Council in 2010. He wished to establish his 32-acre property as a residential compound in order to provide portions of his land to his son and daughter on which they could build their own homes. He also stated that he had no intention of selling any portion of his land. See also A.O. 2015-28 (granting a hardship exception to a member of Bristol Zoning Board of Review who sought a dimensional variance to construct a second-story bedroom on his personal property, given that the property involved his primary residence, his ownership of the subject property significantly predated his public office, and the relief sought was personal and not connected to any commercial objective). In the present matter, the Petitioner represents that the subject property has been owned by his family for sixty years, that he has owned the property himself for seventeen years, that he is seeking to establish a family residential compound in order to provide land to his children to build their own homes, and that he has no intention or plans to expand his small business or put any lots up for sale. 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, through a family member, legal counsel or other representative, before the Planning Board relative to establishing a residential compound on his personal property. The Petitioner, however, must recuse himself from participating in the Planning Board’s consideration of, and voting on, his application. Notice of recusal must be filed with the Ethics Commission in compliance 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. 2015-28 A.O. 2015-18 A.O. 2013-6 A.O. 2011-34 Keywords: Hardship Exception Property Interest [1] Section 5(e)(1) also prohibits a public official from representing himself before another agency for which the public official is the appointing authority.