Advisory Opinion No. 2018-6 Rhode Island Ethics Commission Advisory Opinion No. 2018-6 Approved: January 23, 2018 Re: Charles Collins QUESTION PRESENTED: The Petitioner, a member of the Scituate 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 Scituate Zoning Board of Review, 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 Scituate Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before the Scituate Zoning Board of Review, over which the Town Council has appointing authority. The Petitioner has been a member of the Scituate Town Council (“Town Council”) continuously since 2006. In his private capacity, the Petitioner owns oil delivery, scrap metal, and tractor trailer commercial parking businesses, located at 220 Central Pike in North Scituate (“Property”). The Petitioner states that his father started the oil delivery business in 1948 and utilized the Property as tractor trailer commercial parking since 1954. The Petitioner further represents that in 1996 he started his scrap metal business and assisted in the operation of his father’s businesses. The Petitioner states that subsequent to the passing of his father in 2008, he became the primary proprietor of the businesses. In May 2017, he received a notice of violation (“Notice”) issued by the Scituate Zoning Official (“Zoning Official”) indicating that there are several violations of the Scituate Zoning Ordinance on the Property in connection with his businesses. According to the Notice, if the Petitioner fails to bring the Property into zoning compliance, he will be fined $200 per day for each offense. The Petitioner represents that he wishes to appeal the Notice. However, such appeals are heard before the Scituate Zoning Board of Review (“Zoning Board”) over which the Town Council has appointing authority. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to allow him to appear before the Zoning Board, in order to appeal the Notice. 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 an existing business or a new commercial venture; 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 applied the hardship exception in circumstances that present somewhat analogous situations. In Advisory Opinion 2015-8, for example, the Ethics Commission granted a hardship exception to a member of the Woonsocket City Council 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. See also A.O. 2017-37 (granting a hardship exception to a member of the Tiverton Harbor and Coastal Water Management Commission in order to appear before his own agency to appeal a denial of his mooring registration renewal application, given that he has owned the mooring for 37 years prior to his appointment to the Commission and he utilizes the mooring in connection with his business that he owned for 28 years, 8 years prior to his appointment). In the instant matter, the Petitioner has owned his scrap metal business for 21 years, 10 years prior to his election to the Town Council in 2006. He further represents that he assisted his father in the operation of the other businesses prior to his election to the Town Council and that after his father’s passing in 2008 he has been the sole proprietor of the businesses, which are his primary source of income. 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 a hardship 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 appeal of the Notice. 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 Zoning Board until after the election cycle for his Town Council seat following the complete resolution of the appeal of the Notice before the Zoning Board, including any further appeals. Additionally, the Petitioner shall, prior to the Zoning Board’s review of and vote on his appeal, inform the Zoning Board 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. 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. 2017-37 A.O. 2015-8 A.O. 2014-4 Keywords: Hardship Exception