Advisory Opinion No. 2020-30 Rhode Island Ethics Commission Advisory Opinion No. 2020-30 Approved: July 14, 2020 Re: Bonnita B. Van Slyke QUESTION PRESENTED: The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she may attend and speak at public hearings before the Charlestown Planning Commission regarding the proposed subdivision of property that directly abuts her personal residential property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Charlestown Town Council, a municipal elected position, may attend and speak at public hearings before the Charlestown Planning Commission regarding the proposed subdivision of property that directly abuts her personal residential property, 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 Public Forum Exceptions (36-14-7003). The Petitioner was first elected to the Charlestown Town Council (“Town Council”) in 2014 and has served continuously since. She states that, in her capacity as a Town Council member, she has volunteered since 2017 to serve as the Town Council’s liaison to the Charlestown Planning Commission (“Planning Commission”). The Petitioner states that, as liaison, she facilitates communication between the Town Council and the Planning Commission, but that she does not speak for the Town Council at Planning Commission meetings. The Petitioner explains that she is not a member of the Planning Commission and that she does not vote on matters before the Planning Commission. She states that she sits in the audience at Planning Commission meetings and that she receives no financial compensation for her role as liaison. The Petitioner informs that members of the Planning Commission are elected, however, the Town Council has the authority to appoint a member to the Planning Commission in the event of a vacancy prior to the expiration of a term. She adds that members of the Planning Commission who were appointed by the Town Council serve until the next election. The Petitioner represents that there are presently no vacancies on the Planning Commission, however, several current members of the Planning Commission were appointed by the Town Council to fill vacancies. The Petitioner states that she and her husband have owned property in Charlestown since approximately 2003. She explains that the property consists of three lots in total, one of which is the location of their personal residence. She further explains that the second lot abuts their personal residence and contains their driveway, and the third lot is located directly across the street from their personal residence and contains their dock. The Petitioner represents that the Pre-Application for the proposed subdivision of a large tract of land owned by 4772 Old Post Road (“subdivision”), and which directly abuts her property, is scheduled for consideration by the Planning Commission on July 8, 2020, but that additional hearings regarding the subdivision are expected to occur in the months that follow. Cognizant of the Code of Ethics, the Petitioner acknowledges that her status as an abutter will require her recusal from participation in any discussions and/or decision-making regarding the subdivision in her capacity as a Town Council member, adding that she is prepared to so recuse. She further acknowledges that, as the Town Council’s liaison to the Planning Commission, she will also be required to recuse from participation in that role whenever matters concerning the subdivision are brought before the Planning Commission, adding that she is prepared to recuse from those matters, as well. The Petitioner seeks permission, however, to address the Planning Commission regarding the proposed subdivision. 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. Section 36-14-5(a). A public official will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her activity, to the official herself, her family member, her business associate, her employer, or any business that she represents. Section 36-14-7(a). Additionally, section 36-14-5(d) prohibits a public official from using her position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, her family member, her business associate or her employer. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) The Code of Ethics prohibits a public official from representing herself or authorizing another person to appear on her behalf before a state or municipal agency of which she is a member, by which she is employed, or for which she is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1) (“section 5(e)”); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). Pursuant to Regulation 1.1.4(A)(1)(a), a person will represent herself before a state or municipal agency if she “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in [] her own favor.” 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 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 within the Code of Ethics’ prohibition on representing herself before an agency for which she is the appointing authority in circumstances where there is a vacancy. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by her herein justify a finding of hardship to permit her to appear before the Planning Commission. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered 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 her 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 also consider other factors and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions to public officials who sought to appear before boards for which they were the appointing authority regarding their personal residences. See, e.g., A.O. 2019-64 (granting a hardship exception to the President of the North Smithfield Town Council, permitting him to appear before the North Smithfield Zoning Board of Review, over which the Town Council has appointing authority, to seek a dimensional variance for his personal residence, provided that he recuse from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle for his Town Council seat and following the complete resolution of his application before the Zoning Board, including appeals, and that, prior to the Zoning Board’s review of and vote on his variance application, he inform the Zoning Board members of his receipt of an advisory opinion and that, consistent therewith, he would recuse from their reappointments as set therein); A.O. 2017-54 (granting a hardship exception to a member of the Bristol Town Council, permitting him to appear before the Bristol Zoning Board of Review, over which the Town Council has appointing authority, to seek a dimensional variance for his commercial property, provided that he recuse from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle for his Town Council seat and following the complete resolution of his application before the Zoning Board, including appeals, and that, prior to the Zoning Board’s review of and vote on his variance application, he inform the Zoning Board members of his receipt of an advisory opinion and that, consistent therewith, he would recuse from their reappointments as set therein) In the present matter, the Petitioner’s ownership interest in her personal residence and two other properties predates her election to the Town Council and her role as liaison to the Planning Commission by a decade. Additionally, the Petitioner acknowledges the reasonable expectation that the abutment and close proximity of the subdivision to her properties could impact the financial value of those properties. For these reasons, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear and represent herself before the Planning Commission, either personally or through legal counsel, regarding the subdivision based upon her standing as an abutter. However, as she properly anticipated, the Petitioner is required to recuse from any discussions and/or decision-making regarding the subdivision in her capacity as a Town Council member, and from participation in her role as liaison whenever matters concerning the subdivision are brought before the Planning Commission. Notice of recusal must be filed consistent with section 36-14-6. Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of any person publicly expressing [] her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual 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 regarding whether she may speak at a public hearing before the Planning Commission during proceedings that involve the subdivision which could financially impact her as the owner of abutting and nearby properties. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O. 2019-41 (opining that a member of the Middletown Town Council could attend and speak at public hearings before the Middletown Planning Board and/or, potentially, the Zoning Board regarding a proposed development of property located across the street from her personal residence, provided the petitioner did not receive access or priority not available to any other member of the public); 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). The Ethics Commission has applied both the hardship and public forum exceptions in a number of advisory opinions. See, e.g., A.O. 2019-51(opining that a member of the Barrington Town Council could appear before the Zoning Board, and potentially the Planning Board and the Town Council, to oppose the proposed subdivision and/or development of a vacant lot directly abutting property jointly owned by him and his spouse, based on both the hardship and public forum exceptions); A.O. 2018-58 (opining that a member of the Exeter Town Council, who was also a former member of the Exeter Planning Board, could appear before the Planning Board, Zoning Board, and potentially the Town Council to oppose the development of property directly abutting his personal residential property, based on both the hardship and public forum exceptions). 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 may appear before the Planning Commission to speak during a public hearing regarding the subdivision that abuts the Petitioner’s own residential and related property, provided that the Petitioner does not receive access or priority not available to any other member of the public. The Petitioner is further cautioned that she may not use her position in any way to influence members of the Planning Commission regarding this matter. See section 36-14-5(d). Finally, as she properly anticipated, the Petitioner must recuse from any discussions and/or decision-making regarding the subdivision in her capacity as a Town Council member, and from participation in her role as liaison whenever matters concerning the subdivision are brought before the Planning Commission. Notice of recusal must be filed 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(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. 2019-64 A.O. 2019-51 A.O. 2019-41 A.O. 2018-58 A.O. 2017-54 A.O. 2003-15 Keywords: Hardship Exception Property Interest Public Forum Exception