Advisory Opinion No. 2019-51 Rhode Island Ethics Commission Advisory Opinion No. 2019-51 Approved: August 20, 2019 Re: Michael W. Carroll QUESTION PRESENTED The Petitioner, a member of the Barrington Town Council, a municipal elected position, seeks an advisory opinion regarding whether his spouse may appear before the Barrington Zoning Board of Review, and potentially the Barrington Planning Board and the Barrington Town Council, to oppose the proposed subdivision and/or development of a vacant lot directly abutting property that the Petitioner and his spouse jointly own. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Town Council, a municipal elected position, or his spouse may appear before the Barrington Zoning Board of Review, and potentially the Barrington Planning Board and the Barrington Town Council, to oppose the proposed subdivision and/or development of a vacant lot directly abutting property that the Petitioner and his spouse jointly own, 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 520-RICR-00-00-1.2.3. The Petitioner is President of the Barrington Town Council (“Town Council”) and has served in that position since his election in 2014. He states he and his spouse reside in the Town of Barrington (“Town”) on property jointly owned by them since 2001. The Petitioner represents that a developer who owns a vacant lot (“vacant lot”) directly adjacent to the Petitioner’s personal residence has applied to the Barrington Zoning Board of Review (“Zoning Board”) for various dimensional variances which would allow the developer to divide the vacant lot into two undersized lots and build a home on each of them. The Petitioner further represents that he and his spouse are disputing the location of the property line between their property and the vacant lot, which may affect the Zoning Board’s decision on the developer’s variance applications. The Petitioner states that the matter could potentially go before the Barrington Planning Board (“Planning Board”) for review and that, although unlikely, if any matter involving the subdivision or the development of the vacant lot were to go before the Town Council for review, he would recuse from the Town Council’s discussions and decision-making. The Petitioner notes that the Town Council has appointing authority over the Zoning and Planning Boards. Based on this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether his spouse could appear before and address the Zoning Board, Planning Board, and/or the Town Council relative to the subdivision and/or development of the vacant lot. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) 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, his family member, his business associate or his employer. The Code of Ethics also 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 “[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). In matters involving real property, the Ethics Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See, e.g., 2012-4; A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. Here, because of his joint ownership of the property along with his spouse, the proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself or authorizing another person to appear on his behalf before his own board, here the Town Council, or any subsidiary boards over which he has appointing authority, here the Zoning and Planning Boards. However, the Ethics Commission will consider whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner and/or his spouse to appear before the Zoning Board, Planning Board, and/or Town Council, with certain restrictions. 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 primarily commercial venture; and whether the official’s interests were brought before an agency by a third party. When deciding whether to apply the hardship exception, the Ethics Commission considers the totality of the circumstances and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions to public officials or their spouses seeking to oppose petitions brought by abutting property owners, both before their own boards, upon recusal, and before boards over which they have appointing authority. See A.O. 2012-4 (granting a hardship exception to a Westerly Town Council member and permitting him to appear before the Westerly Planning Board, the Westerly Zoning Board and the Westerly Town Council to oppose the proposed development of property directly abutting his personal residence); A.O. 2003-33 (granting a hardship exception to a Smithfield Zoning Board member and his spouse and permitting them 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); A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor 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). In the present matter, the Petitioner and his spouse’s ownership interest in their personal residence predates the Petitioner’s election to the Town Council by approximately 13 years. The subdivision and/or the development of the vacant lot, which the Petitioner’s spouse opposes as an abutter, was brought before the Zoning Board through no action by her or the Petitioner, but rather by a third party, namely the owner of the vacant lot. For all of these reasons, it is the opinion of the Ethics Commission that the totality of these particular circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner’s spouse or the Petitioner, if he decides to do so, may appear and represent themselves, either personally or through legal counsel, before the Zoning Board, the Planning Board, and the Town Council, if necessary, based upon their standing as abutters, in order to oppose the subdivision and /or development of the vacant lot. However, the Petitioner is required to recuse from any discussions and/or voting by the Town Council on all matters involving the subdivision or development of the vacant lot. Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6. Furthermore, to lessen any appearance of impropriety, the Ethics Commission instructs the Petitioner to recuse from participation in the Town Council’s appointment or reappointment of any person to the Zoning Board and, should the matter be heard here, the Planning Board until after the election cycle for his Town Council seat following the resolution of all matters, including appeals, involving the subdivision and/or development of the vacant lot. Additionally, the Petitioner shall, prior to his or his spouse’s appearance before the Planning and/or Zoning Boards relative to the subdivision and/or development of the vacant lot, 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 520-RICR-00-00-1.2.3 The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of 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 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). Here, the Petitioner seeks guidance as to whether his spouse may speak at a public forum before the Zoning Board, Planning Board and/or Town Council to state her opposition to the subdivision and/or development of the vacant lot. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O. 2017-11 (opining that the 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 (opining that a 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). Consistent with these prior opinions, and pursuant to the public forum exception found at Regulation 1.2.3, it is the opinion of the Ethics Commission that the Petitioner and/or his spouse may address the Planning Board, the Zoning Board, and/or the Town Council to oppose the subdivision or development of the vacant lot directly abutting their personal residential property, provided that the Petitioner and/or his spouse do 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 subdivision and/or development of the vacant lot as a member of the Town Council. Notice of recusal must be filed with 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) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Related Advisory Opinions A.O. 2017-11 A.O. 2014-4 A.O. 2012-04 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 A.O. 2003-33 A.O. 2003-15 A.O. 2000-45 Keywords Hardship Exception Property Interest Public Forum Exception