Advisory Opinion No. 2020-33 Rhode Island Ethics Commission Advisory Opinion No. 2020-33 Approved: August 18, 2020 Re: Jason E. Licciardi, Sr. QUESTION PRESENTED The Petitioner, a member of the West Warwick Town Council, a municipal elected position, requests an advisory opinion regarding whether he may appear before the West Warwick Planning Board, the West Warwick Zoning Board of Review, and/or potentially the West Warwick Town Council regarding a proposed development of property located across the street from his personal residence. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the West Warwick Town Council, a municipal elected position, may appear before the West Warwick Planning Board, the West Warwick Zoning Board of Review, and/or potentially the West Warwick Town Council regarding a proposed development of property located across the street from his personal residence, 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 states that he has been an elected member of the West Warwick Town Council (“Town Council”) since 2016 and that his current term expires in 2020. He further states that he is seeking re-election and is running unopposed. The Petitioner explains that the Town Council has appointing authority over the West Warwick Planning Board (“Planning Board”) and the West Warwick Zoning Board of Review (“Zoning Board”). He further explains that he lives with his family in a home in West Warwick which he has owned since 1999 and which is his primary residence. The Petitioner represents that a parcel of land located across the street from his home is being subdivided. He explains that more than two acres of said parcel is being sold to a developer who plans to construct a development consisting of seven new single-family homes. The Petitioner further explains that the only access point for the proposed development (“Development”) will face his home directly, causing the light of the exiting vehicles to shine directly into his home. He states that this will greatly negatively impact the quality of life of his entire family and especially of his son who has Autism/Down syndrome. The Petitioner states that the Planning Board has already conducted several public hearings regarding the Development since September 2019 and has reviewed and approved its master plan. The Petitioner states that he attended and spoke at the Planning Board’s public hearings regarding the Development, not in his public capacity as a Town Council member, but in his private capacity as a resident. He represents that another resident has appealed the Planning Board’s approval of the Development’s master plan, and that a public hearing is expected to be scheduled for consideration by the Zoning Board on August 26, 2020. He anticipates that additional hearings regarding the Development will take place before both the Planning Board and the Zoning Board in the months that follow. The Petitioner also notes that certain residents would like to bring their concerns relative to the Development before the Town Council. Cognizant of the Code of Ethics, the Petitioner acknowledges that his status as an abutter will require his recusal from participation in any discussions and/or decision-making regarding the Development in his capacity as a Town Council member, adding that he is prepared to so recuse. However, based on this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether he may appear and address the Planning Board, the Zoning Board and/or potentially the Town Council regarding the Development. 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). A public official will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his activity, to the official himself, his family member, his business associate, his employer, or any business that he 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. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) 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) (“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 himself before a state or municipal agency if he “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his [] 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 “[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). 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, the Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing himself, or authorizing another person to appear on his behalf, before his own board (the Town Council) or any subsidiary board over which he has appointing authority (the Planning Board and the Zoning Board). However, the Ethics Commission will consider whether the unique circumstances represented by him herein justify a finding of hardship to permit the Petitioner to appear and represent himself before the Planning Board, Zoning 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 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. 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 allowing public officials to oppose petitions brought by abutting property owners, both before their own boards, upon recusal, and before boards over which they had appointing authority. See 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. 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 directly across the street from their residential property). In the present matter, the Petitioner’s ownership interest in his personal residence predates his election to the Town Council by approximately 17 years. The matters involving the Development were brought before the Planning Board and the Zoning Board through no action by the Petitioner, but rather by a third party or parties. 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 may appear and represent himself, either personally or through legal counsel, before the Planning Board, the Zoning Board, and/or the Town Council based upon his standing as abutters, in order to address his concerns relative to the Development. However, the Petitioner is required to recuse from any discussions and/or voting by the Town Council on all matters involving or impacting the Development. Notice of recusal must be filed consistent with section 36-14-6. Furthermore, to lessen any appearance of impropriety, the Ethics Commission instructs the Petitioner, should he appear before either the Zoning Board or the Planning Board, to recuse from participation in the Town Council’s appointment or reappointment of any person to the Zoning Board and/or the Planning Board until after the election cycle for his Town Council seat following the resolution of all matters, including appeals, involving the Development. Additionally, the Petitioner shall, prior to his appearance before the Planning Board and/or the Zoning Board relative to the Development, inform the members of either or both of his receipt of the instant advisory opinion and that, consistent herewith, he will recuse from their reappointments as set forth above. 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 his [] own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his [] 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 he may speak at public hearings before the Planning Board, the Zoning Board, and/or the Town Council, upon recusal, during proceedings that involve the Development which could financially impact him as the owner of a nearby property. 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, supra; 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 address the Planning Board, the Zoning Board, and/or the Town Council, upon recusal, during public hearings regarding the Development, 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 he may not use his position in any way to influence members of the Planning Board, the Zoning Board, or the Town Council regarding this matter. See section 36-14-5(d). Finally, as he properly anticipated, the Petitioner must recuse from any discussions and/or decision-making regarding the Development in his capacity as a Town Council member. 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. 2019-51 A.O. 2019-41 A.O. 2018-58 A.O. 2012-4 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 A.O. 2003-33 A.O. 2003-15 Keywords : Hardship Exception Public Forum Exception