Advisory Opinion No. 2020-15 Rhode Island Ethics Commission Advisory Opinion No. 2020-15 Approved: March 3, 2020 Re: Joseph St. Lawrence, III QUESTION PRESENTED: The Petitioner, a member of the Exeter Zoning Board of Review, 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 one’s own board, for purposes of seeking a dimensional variance to construct a shed at his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Exeter Zoning Board of Review, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing oneself before his own board, for purposes of seeking a dimensional variance to construct a shed at his personal residence. The Petitioner was first appointed by the Exeter Town Council to serve a four-year term on the Exeter Zoning Board of Review (“Zoning Board”) in 2015 and was re-appointed to a second term in 2019. The Petitioner represents that he resides in the Town of Exeter in a home that he purchased more than fifteen years ago. He explains that he would like to construct a shed on his property for purposes of storing lawn tools, patio furniture, and various other personal items that he has accumulated over the years. He further explains that, to do so, he will need relief from the Exeter Zoning Ordinance requirements as to lot size, street frontage, front setback, and side depth. The Petitioner’s Zoning Application is scheduled for hearing before the Zoning Board on March 13, 2020. The Petitioner states that he is not aware of any objections having been filed in response to his application. 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 shed. The Code of Ethics prohibits a public official from representing himself 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). While many conflicts can be avoided under the Code of Ethics by recusing from participating and voting in certain matters, such recusal is insufficient to avoid section 5(e)’s prohibitions. 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 advise the state or municipal agency in writing of the existence and the nature of his interest in the matter at issue; recuse himself from voting on or otherwise participating in the agency’s consideration and disposition of the matter at issue; and follow any other recommendations the Ethics Commission may make to avoid any appearance of impropriety in the matter. Section 36-14-5(e)(1)(i-iii). See, e.g., A.O. 2014-26 (granting a hardship exception to a member of the Barrington Zoning Board of Review (“BZB”) and permitting him to appear before the BZB to request a dimensional variance for his personal residence, but requiring that he recuse himself from participating and voting in the BZB’s consideration of his request for relief). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing oneself before a municipal 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 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 is 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 analogous situations. In Advisory Opinion 2011-34, for example, the Ethics Commission granted a hardship exception to an alternate member of the East Greenwich Zoning Board of Review (“EGZB”), permitting her to appear before that agency to seek a dimensional variance from the side-yard setback requirement to construct a shed at her personal residence that she had acquired prior to her appointment to the EGZB. The Commission opined, however, that the petitioner was required to recuse from participation and voting during the EGZB’s consideration of her request for relief, consistent with section 36-14-6. See also A.O. 2017-6 (granting a hardship exception to a member of the Hopkinton Planning Board (“HPB”), allowing him to represent himself before the HPB relative to establishing a residential compound on his personal property, but requiring that he recuse himself from participation and voting during the HPB’s consideration of his request for relief, consistent with section 36-14-6). In the present matter, the Petitioner would like to construct a shed at his residence in order to store his lawn tools, patio furniture, and other personal items. Furthermore, the Petitioner represents that he has owned his home for more than fifteen years, which predates his appointment to the Zoning Board by at least a decade. 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 before the Zoning Board to seek a dimensional variance to construct a shed at his personal residence. 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)(i-iii). Pursuant thereto, the Petitioner must inform the other Zoning Board members of his receipt of the instant advisory opinion and that, consistent therewith, he will recuse from participating during the Zoning Board’s consideration of his request for relief. Notice of recusal shall be filed with the Ethics Commission consistent 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. 2017-6 A.O. 2014-26 A.O. 2011-34 Keywords: Hardship Exception Property Interest