Advisory Opinion No. 2020-42 Rhode Island Ethics Commission Advisory Opinion No. 2020-42 Approved: October 27, 2020 Re: John Yoakum QUESTION PRESENTED: The Petitioner, a member of the Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing oneself before one’s own board, for purposes of seeking a variance that would allow him to subdivide his residential property in order to create an additional lot on which his son can build a house in which to live. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Smithfield Planning Board, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing oneself before one’s own board, for purposes of seeking a variance that would allow him to subdivide his residential property in order to create an additional lot on which his son can build a house in which to live. The Petitioner was appointed by the Smithfield Town Council (“Town Council”) to fill a vacancy on the Smithfield Planning Board (“Planning Board”) in 2012. He was subsequently re-appointed to two additional consecutive 3-year terms, most recently in May of 2017.[1] The Petitioner states that he purchased his present home in 2005 and has resided there since. He represents that his home is situated on 3.15 acres of land and that he and his wife purchased the property hoping that, one day, one of their five children would build a home next to theirs. Therefore, the Petitioner would like to subdivide his property for purposes of creating an additional lot which his son can purchase to build a home in which to live with his wife and their own five children. The Petitioner states that, under the present residential zoning requirements in the Town of Smithfield (“Town”), his property acreage is approximately 20,000 square feet short of the allowable square footage eligible for a subdivision without the award of a variance. He explains that the Town recently revised its Comprehensive Plan and, in doing so, reduced the zoning requirement for residential lot sizes from two acres per lot to one acre per lot. He further explains that the proposed zoning change went before the Planning Board on October 15, 2020, at which time the Planning Board voted to advise the Town Council to accept the proposed zoning change. The Petitioner represents that he did not participate in the discussions and vote on the matter and did not even attend the Planning Board meeting. He adds that the matter has yet to be considered by the Town Council and that he does not know when that might occur. The Petitioner states that his application for a variance is expected to go before the Planning Board sometime this November. He states that he is prepared to recuse from participation in the discussions and vote on the matter but seeks a hardship exception from the Ethics Commission that would allow his attorney and land surveyor to appear before the Planning Board on his behalf. 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if a public official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Further, the Code of Ethics prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Most relevant to the instant question, the Code of Ethics also 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. Section 36-14-5(e)(1) (“section 5(e)”); Commission Regulation 1.1.4 Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). The representation of oneself before a state or municipal agency includes the participation by the public official, or by another person at the public official’s authorization and/or direction, in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in the public official’s favor. Regulation 1.1.4(A)(1)(a)&(b). 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 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 5(e)(1)(i-iii). 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 or his authorized representative to appear before the Planning 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 was 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. The cases in which the Ethics Commission has not granted a hardship exception generally involved primarily commercial ventures, where the petitioner’s ownership did not predate his appointment to public office. See, e.g. , A.O. 2006-43 (refusing to grant a hardship exception where the subject property was not the petitioner’s principal place of business or primary residence, but rather a commercial venture that was acquired only a few months before his advisory request, after his appointment to the Barrington Planning Board); A.O. 2000-41 (refusing to grant a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property because, although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner). There have been a number of cases in which the Ethics Commission has granted a hardship exception to a public official seeking to transfer a portion of his or her residential property to a family member. In Advisory Opinion 2020-20, for example, the Ethics Commission granted a hardship exception to a member of the South Kingstown Planning Board (“SKPB”) which allowed him to represent himself before that agency in order to seek permission to subdivide property that he had purchased seven years prior to his appointment to the SKPB, which consisted of a single-family residential structure that his daughter had occupied. The petitioner, who resided at a different address, sought to subdivide the property into two lots and construct a second residential structure on the newly created lot for one of his other children to occupy. The subdivision approval was personal in nature and in no way related to any commercial venture. The Ethics Commission granted the hardship exception but required the petitioner to recuse himself from participating in the SKPB’s consideration of his request. See also A.O. 2017-19 (granting a hardship exception to a member of the Little Compton Town Council (“LCTC”), allowing him to represent himself before the Little Compton Zoning and Planning Boards to seek a subdivision variance that would allow his mother to gift the house she owned to the petitioner and his wife who had been residing there, and a second house on the property to the petitioner’s brother and sister); A.O. 2012-16 (granting a hardship exception to a member of the Foster Town Council (“FTC”), allowing him to represent himself before Foster Zoning and Planning Boards to seek a variance permitting him to subdivide his personal residential property, acquired prior to his election to the Town Council, to provide his son and daughter with portions of the land on which they could build their homes). In the present matter, the Petitioner would like to fulfill the hope he has shared with his wife for many years that one of their children might eventually build a home on a portion of their property. Therefore, the Petitioner seeks to subdivide his residential property in order to transfer a newly subdivided lot to his son, who plans to build a house and live next door to his parents. The property involves the Petitioner’s personal residence, which was purchased fifteen years ago, some seven years before his initial appointment to the Planning Board. The relief sought is personal in nature and does not involve an existing business or new commercial venture. Under this set of particular facts, whether or not the Petitioner elects to gift or sell the subdivided lot to his son is not relevant to the analysis. Accordingly, in consideration of the Petitioner s above representations, and consistent with past advisory opinions issued 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 in order to allow the Petitioner or his authorized representative(s) to appear before the Planning Board to seek the variance necessary to allow the Petitioner to subdivide his residential property into an additional lot to be transferred to his son. The Petitioner must, however, recuse himself from participating in the Planning Board’s consideration of his request. Notice of recusal shall 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) Related Advisory Opinions: A.O. 2020-20 A.O. 2017-19 A.O. 2012-16 A.O. 2006-43 A.O. 2000-41 Keywords: Hardship Exception [1] The Petitioner explains that, under normal circumstances, his request to the Town Council for reappointment to the Planning Board would have been made and considered in May of 2020. In light of the COVID-19 pandemic, the Town Council has yet to interview and consider the reappointments of the Petitioner and two other Planning Board members whose terms expired last May. The Petitioner explains that, pursuant to the Town’s policy, he shall remain on the Planning Board, notwithstanding the expiration of his prior appointment, until such time as the Town Council reappoints him or appoints his replacement. The Petitioner adds that the structure of the Planning Board, which presently consists of nine members, may be reduced to seven members following the election in November of 2020, which could also be a reason that the reappointments and/or replacements of the members whose terms have expired last May have yet to be considered.