Advisory Opinion No. 2019-22 Rhode Island Ethics Commission Advisory Opinion No. 2019-22 Approved: March 26, 2019 Re: Sherri L. Desjardins QUESTION PRESENTED : The Petitioner, Deputy Zoning Official and E911 Coordinator for the Town of Hopkinton, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her spouse from petitioning the Hopkinton Town Council for an amendment to the Zoning Ordinance District Use Regulations that would allow the Petitioner to open and operate an art studio and gallery on her spouse’s property. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the spouse of the Petitioner, Deputy Zoning Official and E911 Coordinator for the Town of Hopkinton, a municipal employee position, is not prohibited by the Code of Ethics from petitioning the Hopkinton Town Council for an amendment to the Zoning Ordinance District Use Regulations that would allow the Petitioner to open and operate an art studio and gallery on her spouse’s property. The Petitioner states that she and her spouse, Norbert Ansay, Jr. (“Mr. Ansay”) have resided in the Town of Hopkinton (“Town”) for twenty-eight years. The Petitioner further states that she has been employed by the Town for seventeen years and is presently the Town’s Deputy Zoning Official and E911 Coordinator. She explains that her public duties include, but are not limited to, general office work related to the daily operations of the Building and Zoning Office; responding to public inquiries about zoning and land use; and providing information to the public about the procedures for requesting variances and special-use permits. The Petitioner states that, in December of 2018, Mr. Ansay purchased property (“property”) in Hopkinton where the “Village Place” package store was formerly located. The Petitioner further states that the property, which Mr. Ansay purchased in his name only, is presently vacant and not being used. The Petitioner explains that she would like to open an art studio and gallery on the property owned by Mr. Ansay, adding that she has been an artist for thirty-five years. The Petitioner would like to exhibit her own art and offer art/painting/craft classes on the property. The Petitioner represents that the property owned by Mr. Ansay is subject to the District Use Table found within the Town’s Zoning Ordinance District Use Regulations, explaining that the District Use Table identifies by chart whether the particular use of a property in Hopkinton is allowed by right, allowed by special-use permit, or prohibited. The Petitioner further represents that the use of Mr. Ansay’s property as an art studio and gallery would currently require a special-use permit. The Petitioner states that special-use permits are issued by the Hopkinton Zoning Board and are rarely denied. The Petitioner further states that the Hopkinton Town Council (“Town Council”) has the authority to amend the District Use Table to permit the use of a property as an art studio and gallery by right, and that Mr. Ansay would like to petition the Town Council for such an amendment. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if a public official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). The Code of Ethics also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Any person within her family includes “a spouse.” Section 36-14-2(1). Additionally, the Code of Ethics provides that the Petitioner may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. Section 36-14-5(e)(1) (“section 5(e)”); Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). Public officials are also prohibited from authorizing another person to appear on their behalf before a state or municipal agency of which they are a member or by which they are employed. Regulation 1.1.4(A)(1)(b). These prohibitions include matters before another agency over which the public official sits as a member of the appointing authority. Regulation 1.1.4(A)(1)(C). 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). In the instant matter, it is the Petitioner’s spouse and not the Petitioner who wishes to appear before the Town Council to seek an amendment to the District Use Table that would permit by right the use of his property for an art studio and gallery. See A.O. 2018-46 (opining that the wife of a member of the Scituate Town Council was not prohibited by the Code of Ethics from appearing before the Hope Village Overlay Committee, the Scituate Planning Board of Review, and/or the Scituate Zoning Board of Review, over which the Town Council had appointing authority, to obtain approval and establish an early learning center on property located in the Town of Scituate). The Petitioner is not a member of the Town Council and she is not employed by it; nor is the Town Council an agency over which the Petitioner sits as a member of the appointing authority. Therefore, an appearance by Mr. Ansay before the Town Council is not incompatible with the Code of Ethics. Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s spouse from petitioning the Hopkinton Town Council for a text amendment to the Zoning Ordinance District Use Regulations that would allow by right, as opposed to by special-use permit, the Petitioner to open and operate an art studio and gallery on her spouse’s property. 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: § 36-14-2(1) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Regulation 520-RICR-00-00-1.1.4 Advisory Opinions : A.O. 2018-46 Keywords : Appointing Authority Conflict of Interest