Advisory Opinion No. 2019-30

Rhode Island Ethics Commission

Advisory Opinion No. 2019-30

Approved: April 23, 2019

QUESTION PRESENTED:

The Petitioner, a member of the Little Compton 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 appearing before his own board to seek approval for the administrative subdivision of lots adjacent to his primary residence.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Little Compton Planning Board, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own board to seek approval for the administrative subdivision of lots adjacent to his primary residence.

The Petitioner is a member of the Little Compton Planning Board (“Planning Board”), having been appointed in January of 2016. He represents that his primary residence is located at 312 West Main Road, Little Compton also known as Assessor’s Map 20, Lot 44-2 (“Lot 44-2”), and that he has owned it for 18 years.

The Petitioner states that he is seeking to enter into a Purchase and Sale Agreement (“Agreement”) relative to undeveloped parcels of land adjacent to his primary residence and designated as Assessor’s Map 21, Lots 72 (“Lot 72”) and 40-3 (“Lot 40-3”). The Petitioner represents that, under the terms of the Agreement relevant to Lot 72, the Little Compton Agricultural Conservancy Trust will purchase the development rights, the Nature Conservancy will purchase a secondary conservation easement and/or trail easement, and the Petitioner will acquire the “leftover” interest, which would be greatly diminished due to the contemporaneous purchase of the development rights. Furthermore, with respect to Lot 40-3, the Petitioner explains that he will acquire a 7-acre portion of it, which will be designated as Lot 40-3b and for which the Nature Conservancy will acquire a conservation easement. The Petitioner explains that the remainder of the Lot 40-3, approximately 33 acres, will be purchased by the Nature Conservancy and will be similarly encumbered by a conservation easement.

The Petitioner further explains that Lots 72 and 40-3b will then be merged allowing him to continue to enjoy them in their natural condition with the development rights prohibited in perpetuity and the permissible uses being limited to passive recreation and farming. The Petitioner represents that because the transaction involves the adjustment of property lines between Lots 72 and 40-3, review and approval by the Planning Board will be required. Further, he states that a merger of lots that does not create additional lots for development, but merely erases a lot line, is considered an administrative subdivision eligible for administrative review and approval by a municipality’s administrative officer. He represents, however, that Little Compton does not have a full-time administrative officer; therefore, all administrative subdivisions are referred to the Planning Board for review and approval.

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 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). 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 “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 Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing himself before an agency of which he is a member. 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 Planning 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 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.

While the Commission has not previously considered a fact pattern precisely on point with that presented by the Petitioner, it has granted hardship exceptions to public officials who sought to appear before their own boards regarding their personal residence or property purchased to be used as their personal residence. In Advisory Opinion 2014-26, for example, the Ethics Commission considered whether a member of the Barrington Zoning Board of Review could appear before his own board to request a dimensional variance to construct a second-story dormer on his personal residence. There, the Commission granted a hardship exception based on the petitioner’s representations that the dimensional variance sought involved his principal 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. See also A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member, who needed a dimensional variance to build a storage shed at her personal residence that she acquired prior to her appointment to the Board); A.O. 2010-32 (granting a hardship exception to a Barrington Zoning Board member, who sought a variance to construct a new home on a legal non-conforming lot, given that the property was to be used as his primary residence and was located in the same neighborhood where the petitioner had lived for over nine years, enabling his children to remain at the same school); 98-113 (granting a hardship exception to a Narragansett Zoning Board member who sought a variance for a vacant lot on which he intended to build and move into a new primary residence because, although the property interest did non pre-exist his public office, it was being purchased as his principal residence).

In contrast, the cases in which the Ethics Commission has declined to grant a hardship exception generally involved primarily commercial ventures, where the petitioner’s ownership did not predate his appointment to public office. See, e.g., A.O. 2006-43 (refusing to apply the hardship exception where property was not the petitioner’s principal place of business or primary residence, but rather a commercial venture that was acquired only a few months before his advisory request, after his appointment to the Planning Board); A.O. 2000-41 (refusing to grant a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property, because although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner); A.O. 97-146 (concluding that a North Kingstown Zoning Board member could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer).

Here, the Petitioner represents that the ownership of his primary residence predates his appointment to the Planning Board. Furthermore, although the acquisition of Lots 72 and 40-3b does not predate his service on the Planning Board, it is directly related to his primary residence rather than to any commercial venture. Based on the above representations and the review of prior advisory opinions, it is the opinion of the Ethics Commission that the totality of the circumstances warrants application of the hardship exception to section 36-14-5(e)’s prohibitions. Accordingly, the Petitioner may appear, personally or through counsel, before the Planning Board to seek approval for the administrative subdivision of the lots. The Petitioner, however, must recuse himself from participating in the Planning Board’s consideration of and voting on his application for a subdivision approval. Notice of recusal shall 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

520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016)

Related Advisory Opinions:

A.O. 2014-26

A.O. 2011-34

A.O. 2010-32

A.O. 2006-43

A.O. 2000-41

A.O. 97-146

A.O. 98-113

Keywords:

Hardship Exception