Advisory Opinion No. 2018-58 Rhode Island Ethics Commission Advisory Opinion No. 2018-58 Approved: December 11, 2018 Re: Francis DiGregorio QUESTION PRESENTED : The Petitioner, a member of the Exeter Town Council, a municipal elected position, and a former member of the Exeter Planning Board, a municipal appointed position, seeks an advisory opinion regarding whether he may appear before the Exeter Planning Board, the Exeter Zoning Board, and potentially the Exeter Town Council to oppose the proposed development of property directly abutting his personal residential property. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter Town Council, a municipal elected position, and a former member of the Exeter Planning Board, a municipal appointed position, may appear before the Exeter Planning Board, the Exeter Zoning Board, and potentially the Exeter Town Council to oppose the development of property directly abutting his personal residential property, based upon a finding that the unique facts as represented justify the application of the hardship exception as provided in R.I. Gen. Laws § 36-14-5(e)(1) and the public forum exception as provided in Commission Regulation 36-14-7003. The Petitioner states that on November 20, 2018, he was sworn in as a new member of the Exeter Town Council (“Town Council”). The Petitioner further states that on November 19, 2018, prior to joining the Town Council, he resigned from the Exeter Planning Board (“Planning Board”) on which he had served as a member for the last 20 years. The Petitioner represents that for the last 37 years he and his wife have resided in Exeter in a house that the Petitioner built himself on a then-vacant lot that he purchased in 1973. The Petitioner represents that, as a member of the Planning Board, he became aware of an application by Green Development to develop land for purposes of hosting a utility-scale solar power station (“Solar Facility”). The Petitioner further represents that, originally, the Solar Facility was to have been located on property within a six-mile radius of the Lafayette electric substation in North Kingstown, but that in October of 2018, the Town Council voted to amend the Exeter Code of Ordinances in a way that would allow Green Development to instead locate the Solar Facility in a residential area of Exeter comprised of fifteen lots, one of which abuts the Petitioner’s personal residential property. The Petitioner states that the Town Council approved the amendment despite the Planning Board having recommended against it. The Petitioner further states that he did not participate in the discussions and voting by the Planning Board relative to the changes sought by Green Development because he is an abutter to the proposed location. The Petitioner opines that the development of the Solar Facility as proposed will have a negative impact on the value of his property and the use and enjoyment of his home and, for that reason, he is seeking permission to appear and speak, or to retain legal counsel to appear and speak, at public hearings before the Planning Board, the Exeter Zoning Board (“Zoning Board”), and potentially before the Town Council to oppose the development. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) Section 36-14-5(e)(1) prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. This prohibition on representing oneself also includes representing oneself before another agency for which he or she is the appointing authority. Commission Regulation 36-14-5016.[1] In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. This is not the case with section 36-14-5(e) (“section 5(e)”). Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions are absolute and continue while the official remains in office, and for a period of one year thereafter. As an initial matter, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before his own board, the Town Council, or any subsidiary boards over which he has appointing authority, here the Planning and Zoning Boards. However, the Commission will consider whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to appear before the Planning Board, Zoning Board and Town Council with certain restrictions. In considering questions of hardship on a case by case basis, the Commission has focused on a totality of the circumstances that have included such factors as: 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 by a third party. Under a totality of the circumstances analysis, no single factor is determinative. The Commission has previously granted hardship exceptions to public officials seeking to oppose petitions brought by abutting property owners, both before their own boards and before boards over which they have appointing authority. See A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor permitting him to appear before the Zoning Board to oppose a zoning application for property abutting his personal residence, based upon the fact that the matter was brought to the Zoning Board through no action of his own and it involved his personal residence, which he had owned since 1981); A.O. 2009-18 (granting a hardship exception to a Little Compton Town Council member permitting him to appear before the Little Compton Zoning and Planning Boards regarding a property that he had inherited and on which he intended that a family member would reside if the property were rebuilt, provided the petitioner recuse from Zoning or Planning Board appointments until the completion of the next election cycle). In the present matter, the Petitioner’s ownership interest in his personal and only residence predates his election to the Town Council by some 37 years. The development of the Solar Facility, which the Petitioner opposes as an abutter, was brought before the Planning Board through no action of his own, but rather by a third party, namely Green Development. Additionally, the Petitioner represents that the development of the Solar Facility could not only negatively affect the value of his home, but also the use and enjoyment of his home. For all of these reasons, it is the opinion of the Ethics Commission that the totality of these particular circumstances justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear and represent himself, either personally or through legal counsel, before the Planning Board, the Zoning Board, and the Town Council if necessary, based upon his standing as an abutter, in order to oppose the development of the Solar Facility. However, the Petitioner is required to recuse from any discussions and/or voting by the Town Council on all matters involving the Solar Facility. Notice of recusal should be filed with the Commission and the Exeter Town Council in accordance with § 36-14-6. Furthermore, to lessen any appearance of impropriety, the Commission instructs the Petitioner to recuse from participation in the Town Council’s appointment or reappointment of any person to the Planning and/or Zoning Boards until after the election cycle for his Town Council seat following the resolution of all matters, including appeals, involving the development of the Solar Facility. Additionally, the Petitioner shall, prior to each appearance before the Planning and/or Zoning Board relative to the development of the Solar Facility, inform the members of his receipt of the instant advisory opinion and that, consistent herewith, he will recuse from their reappointments as set forth above. Public Forum Exception – Commission Regulation 36-14-7003 Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, business associate, employer, or any business which the public official represents. Section 36-14-7(a). Additionally, section 36-14-5(d) prohibits a public official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, a business associate or an employer. The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue or any person publicly expressing his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child.” Commission Regulation 36-14-7003.[2] Here, the Petitioner seeks guidance as to whether he may speak at a public forum before the Planning Board, Zoning Board and/or Town Council to state his opposition to the Solar Facility. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O. 2017-11 (chairperson of the North Providence Historic District Commission could, upon recusal, attend and speak at a public hearing before the North Providence Historic District Commission regarding a proposed development of property that directly abutted her personal residence); A.O. 2003-15 (member of the Scituate Town Council could, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he was an abutter, provided that he did not receive special access or priority not available to any other member of the public). The Ethics Commission has also applied both the hardship and public forum exceptions in advisory opinions for which, in at least one case, the facts as represented were strongly analogous to those set forth by the instant Petitioner. See A.O. 2012-04 (member of the Westerly Town Council could appear before the Westerly Planning Board, the Westerly Zoning Board, and/or the Westerly Town Council to oppose the proposed development of a Recreational Vehicle Park on property directly adjacent to his primary residence based on a finding that the unique facts as represented justified the application of both the hardship and public forum exceptions); A.O. 2003-33 (member of the Smithfield Zoning Board and his spouse were permitted to appear before the Zoning Board to testify regarding a petition to locate a church, with a capacity of 2,300 seats and parking for 975 cars, directly across the street from their residential property, based on both the hardship and public forum exceptions). Consistent with these prior opinions, and pursuant to the public forum exception found at Regulation 7003, it is the opinion of the Ethics Commission that the Petitioner may address the Planning Board, the Zoning Board, and potentially the Town Council to oppose the development of the Solar Facility on property directly abutting his personal residential property, provided that the Petitioner does not receive access or priority not available to any other member of the public. The Petitioner is further cautioned that he may not use his position in any way to influence members of the Planning Board, the Zoning Board, or the Town Council. See section 36-14-5(d). Finally, the Petitioner must recuse from participation and voting on any and all matters relating to the Solar Facility as a member of the Town Council. Notice of recusal must be filed with the Town Council and the Rhode Island Ethics Commission pursuant to 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(a) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5016 Commission Regulation 36-14-7003 Related Advisory Opinions : A.O. 2017-11 A.O. 2012-04 A.O. 2009-18 A.O. 2003-33 A.O. 2003-15 A.O. 2000-45 Keywords : Hardship Exception Property Interest Public Forum Exception [1] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Commission Regulation 36-14-5016 now corresponds to Regulation 520-RICR-00-00-1.1.4 Representing Oneself of Others, Defined (36-14-5016). [2] Commission Regulation 7003 now corresponds to Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003).