Advisory Opinion No. 2019-64 Rhode Island Ethics Commission Advisory Opinion No. 2019-64 Approved: November 19, 2019 Re: Paul E. Vadenais QUESTION PRESENTED: The Petitioner, the President of the North Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the North Smithfield Zoning Board of Review, over which the Town Council has appointing authority, in order to seek a dimensional variance for his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the President of the North Smithfield Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the North Smithfield Zoning Board of Review, over which the Town Council has appointing authority, in order to seek a dimensional variance for his personal residence. The Petitioner was elected to the North Smithfield Town Council (“Town Council”) for a term of two years on November 6, 2018, and was then elected Town Council President by the members of the Town Council. The Petitioner states that, prior to his election to the Town Council, he served the Town of North Smithfield as its Charter Review Commission Chairman (2016-2018); as a member of the Budget Committee (2010-2012); and as a member of the School Committee (1995-2010). He further states that, in his private capacity, he is the Vice-President and co-owner of Friends Foundry in Woonsocket, an aluminum die castings manufacturer. The Petitioner represents that he resides in North Smithfield in a home that he purchased twenty-five years ago, in October of 1994. He describes his house as a raised ranch with an underground garage. He explains that he would like to construct a detached garage to accommodate a second vehicle. He further explains that, to construct this garage, he will need relief from the North Smithfield Zoning Code requirement of a 10 foot set back from side and rear lot lines. Petitions for such relief are heard by the North Smithfield 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 to seek the variance needed to construct the detached garage. 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 1.1.4 Representing Oneself or Others, Defined (36-14-5016). Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, these 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 receipt of 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; and whether the matter involved a significant economic impact. 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 2016-8, for example, the Ethics Commission granted a hardship exception to a member of the Portsmouth Town Council permitting him to appear before the Portsmouth Planning Board of Review, over which the Town Council had appointing authority, in order to seek a dimensional variance to install an above-ground swimming pool at his personal residence. There, the Ethics Commission granted the petitioner a hardship exception based upon the petitioner’s representations that the situation involved his personal residence, which was purchased prior to his election to the Town Council, and the purpose of the swimming pool was for the personal use and enjoyment of his family. See also A.O. 2014-4 (granting a hardship exception to a Portsmouth Town Council member allowing him to represent himself before the Portsmouth Zoning Board to seek dimensional variances from the setback and lot coverage requirements in order to construct a removable wooden cover over his existing above-ground septic tank to create more usable space in his backyard); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member allowing her to represent herself before her own board in order to seek a dimensional variance from the side-yard setback to build a storage shed at her personal residence that she acquired prior to her appointment to the Board). In the present matter, the Petitioner would like to construct a detached garage at his residence in order to accommodate another vehicle. Furthermore, the Petitioner represents that he has owned his home for twenty-five years, which is twenty-four years prior to his election to the Town Council, and also prior to the start of more than two decades of near continuous public service in various capacities for the Town of North Smithfield. 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 making an exception to section 5(e) s prohibitions to allow the Petitioner to represent himself, either personally or through a representative, before the Zoning Board relative to his application for a dimensional variance to his personal property. 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 his application before the Zoning Board, including any appeals. Additionally, the Petitioner shall, prior to the Zoning Board’s review of and vote on his variance application, 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) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2016-8 A.O. 2014-4 A.O. 2011-34 Keywords: Hardship Exception Property Interest