Advisory Opinion No. 2018-24 Rhode Island Ethics Commission Advisory Opinion No. 2018-24 Approved: April 10, 2018 Re: John F. Mahoney QUESTION PRESENTED: The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether he may appear before the Scituate Plan Commission, the members of which the Town Council appoints, to obtain a preliminary/final approval of his Comprehensive Permit Application. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Scituate Town Council, a municipal elected position, qualifies for a hardship exception to appear before the Scituate Plan Commission, the members of which the Town Council appoints, to obtain a preliminary/final approval of his Comprehensive Permit Application. The Petitioner is a member of the Scituate Town Council (“Town Council”), having been elected to that position in November 2016. The Petitioner explains that in his private capacity he is a developer with 30 years of experience and has built a number of single-family homes throughout the State of Rhode Island, as well as an 18-unit condominium development in North Providence. The Petitioner represents that in March 2016, prior to his election, he purchased a 6.5-acre parcel of undeveloped land on which he planned to build a housing development consisting of 18 condominium units. He explains that twenty-five percent (25%) of the units will be deemed affordable housing. The Petitioner further notes that, currently, only 0.8 percent of the required 10 percent of Scituate’s housing stock is affordable housing. The Petitioner represents that his proposed development requires a Comprehensive Permit from the Town of Scituate (“Town” or “Scituate”), and that the Scituate Plan Commission (“Plan Commission”) is the reviewing authority for such permit applications. The Petitioner notes that, to date, he has not participated in the appointment or reappointment of any members of the Plan Commission. The Petitioner states that on March 30, 2016, he filed a Comprehensive Permit Application with the Plan Commission which conducted a pre-application meeting on April 19, 2016, at which the Petitioner presented an overview of the proposed development. Thereafter, on April 25, 2016, the Petitioner filed a Master Plan application which was approved by the Plan Commission on July 19, 2016. He explains that, since then, he has been working with his privately hired engineer, attorney, and other professionals to fulfill all the requirements and conditions posed by the Plan Commission in 2016. The Petitioner states that the final step in the process is receiving a preliminary/final approval from the Plan Commission. The Petitioner notes that he invested a considerable amount of money in this project and that he would suffer substantial financial impact if he is unable to complete it. Given these facts, the Petitioner asks whether he may appear before the Plan Commission relative to receiving a preliminary/final approval of his Comprehensive Permit Application. 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 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 himself before an agency over which he 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 Plan Commission. 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. In past advisory opinions, the Commission has declined to grant a hardship exception for matters involving new commercial ventures. In Advisory Opinion 2006-43, the Ethics Commission declined to grant a hardship exception to a member of the Barrington Planning Board, who sought approval from his own board to construct an affordable housing development, because the property was not the petitioner’s residence or place of business, the development appeared to be in furtherance of a commercial venture, and the petitioner’s legal interest in the property did not predate his appointment to the Planning Board. The Commission also declined to find a hardship in Advisory Opinion 2003-49, where the Assistant Solicitor for the Town of Lincoln wished to represent himself before the Lincoln Town Council, Zoning Board, and Planning Board regarding the development of two parcels of real estate he owned in the Town. The hardship exception was not granted because the petitioner’s ownership of the lots did not predate his appointment as Assistant Solicitor and it was uncertain as to whether either lot would be used as the petitioner’s primary residence or simply resold in commercial transactions after development. See also A.O. 2000-41 (declining to grant a hardship exception to a member of the Exeter Zoning Board who sought to generate additional income by entering into a contract to locate a cellular communications tower on his residential property because the proposed commercial venture served only to generate additional income for the petitioner); A.O. 97-146 (concluding that a member of the North Kingstown Zoning Board could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer). In contrast, the Ethics Commission has occasionally applied the hardship exception to commercial ventures when exceptional circumstances are present. For example, in Advisory Opinion 2018-5, the Ethics Commission granted a hardship exception to a member of the Scituate Town Council, allowing him to appear before various boards, the members of which the Town Council appoints, to obtain approvals to restore and renovate his commercial property which was damaged in a fire. The Commission considered the facts that he had operated his primary business on the property for several years prior to his election to the Town Council, the property was extensively damaged by fire and could not reopen absent certain approvals by one or more of the boards, the petitioner did not seek any extraordinary relief from Scituate’s building and zoning ordinances, and that he suffered a substantial financial hardship due to the continuing loss of income from the store. Similarly, in Advisory Opinion 2002-8, the Ethics Commission granted a hardship exception to a Narragansett Town Council member to appear before the Town Council in order to establish the appropriate zone determination for his property which he had purchased several months prior to his election to the Town Council, given that the zoning of the property was uncertain due to prior Council error. See also 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. 2010-19 (granting a hardship exception to an alternate member of the Newport Zoning Board to appear before his own board and appeal the denial of a building permit to refurbish unused space for commercial rental use within a residential rental property, where his ownership predated his public service and where the desired use was consistent with prior use and had the least financial impact on the petitioner); A.O. 2005-32 (granting a hardship exception to a Westerly Planning Board member to appear before the Planning Board to request a zone change which would allow the petitioner to relocate his business, an ice cream shop, notwithstanding that his property rights did not pre-exist his appointment to the Planning Board); A.O. 98-94 (allowing a Portsmouth Zoning Board of Review member to appear before her former board to seek variances allowing subdivision of a lot she intended to sell). In the present matter, the Petitioner purchased the property, filed the Comprehensive Permit Application, and obtained a Master Plan Approval prior to his election to the Town Council. Furthermore, he represents that absent preliminary/final approval from the Plan Commission, he stands to suffer significant economic impact due to his considerable investment to date. Considering the facts represented by the Petitioner and 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 to allow the Petitioner to represent himself, either personally or through a representative, before the Plan Commission in order to receive a preliminary/final approval of his Comprehensive Permit Application. However, section 5(e) authorizes the Ethics Commission to condition such exception upon the Petitioner’s agreement to follow certain steps aimed at reducing any appearance of impropriety. Section 36-14-5(e)(1)(iii). Pursuant thereto, the Petitioner must recuse from the Town Council’s appointment or reappointment of any persons to the Plan Commission, or of any Town official that may be involved in review or decision-making relative to this development until after the election cycle for the Petitioner’s Town Council seat following the complete resolution of the applications before each respective board, including any appeals. Additionally, the Petitioner shall, prior to each Plan Commission’s review or vote, inform the Plan Commission members of his receipt of the instant advisory opinion and that, consistent therewith, he will recuse from their reappointments as set forth above. Notice of recusal shall be filed with the Ethics Commission in accordance with section 36-14-6. Finally, this opinion should not be construed to authorize or endorse any further hardship exceptions for this Petitioner relative to any future development projects in Scituate. 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. 2018-5 A.O. 2014-4 A.O. 2011-33 A.O. 2010-19 A.O. 2006-43 A.O. 2005-32 A.O. 2003-49 A.O. 2002-8 A.O. 2000-41 A.O. 98-94 A.O. 97-146 Keywords: Hardship Exception Property Interest