Advisory Opinion No. 2020-43 Rhode Island Ethics Commission Advisory Opinion No. 2020-43 Approved: October 27, 2020 Re: Erik Brine QUESTION PRESENTED: The Petitioner, a member of the Jamestown 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 special use permit to raise chickens at his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown 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 special use permit to raise chickens at his personal residence. In January of 2019, the Petitioner was appointed by the Jamestown Town Council (“Town Council”) to serve a one-year term as a second alternate member of the Jamestown Zoning Board of Review (“Zoning Board”) and was re-appointed to a second term in January of 2020. He is currently a candidate for the Town Council. In his private capacity, the Petitioner is the Executive Director of the National Institute for Undersea Vehicle Technologies and serves as a Colonel in the Air Force Reserve. He states that he has lived in Jamestown since July of 2017 and has resided in his present home since June of 2019. The Petitioner is the father of four children (ages 14, 12, 10, and 8) who are currently distance learning as a result of the COVID-19 pandemic. He explains that, were his 12-year-old son attending classes at school right now, his sixth grade class would be incubating chicks as part of the curriculum. In an effort to preserve that opportunity for his child, and as an educational experience for his entire family, the Petitioner would like to obtain and raise up to six chickens on his residential property. He explains that, because his property consists of less than one acre, a special use permit will be required to obtain and raise the chickens. The Petitioner, who emphasizes that roosters will be excluded from this project, describes this as an opportunity not only to study the biology of incubation and raising chickens, but as an opportunity for lessons in math, art, and engineering when the family designs and constructs a coop to house the chickens. He explains that the aforementioned educational opportunities will extend to a civics lesson for his 12-year-old son, who is expected to be the family member to appear before the Zoning Board to ask for the necessary special use permit in the event the Petitioner’s request for a hardship exception is granted. The Petitioner states that he filed a Special Use Permit Application (“application”) in August of this year, adding that the matter was originally scheduled for hearing in September, but was postponed in order to allow the Petitioner to seek the instant advisory opinion. The application is now scheduled for hearing before the Zoning Board on October 27, 2020. The Petitioner represents that he has discussed with his immediate neighbors his plans to raise up to six chickens. He further represents that he is not aware of any objections having been filed in response to his application, but that several letters of support have been submitted. Cognizant of the Code of Ethics, the Petitioner seeks a hardship exception to allow him and/or his son to appear before the Zoning Board to seek the special use permit needed to obtain and raise the chickens. 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) (“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 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 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. Although the Ethics Commission has not previously had occasion to apply the hardship exception to allow a petitioner to seek a special use permit to obtain and raise animals, the hardship exception has been applied in a number of otherwise analogous situations. In Advisory Opinion 2020-15, for example, the Ethics Commission granted a hardship exception to a member of the Exeter Zoning Board of Review (“EZB”), allowing him to represent himself before that agency in order to seek a dimensional variance that would allow him to construct a shed at his personal residence for his personal use, but requiring that he recuse from participation and voting during the EZB’s consideration of his request for relief. That petitioner had purchased his home more than a decade before his appointment to the EZB. 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 that agency relative to establishing a residential compound on the personal property he had purchased some 15 years prior to his appointment to the HPB, but requiring that he recuse from participation and voting during the HPB’s consideration of his request for relief); A.O. 2011-34 (granting a hardship exception to an alternate member of the East Greenwich Zoning Board of Review (“EGZB”), allowing her to represent herself before that agency to seek a dimensional variance from the side-yard setback requirement to construct a shed at her personal residence for her personal use, which she had purchased three years prior to her appointment to the EGZB, but requiring that she recuse from participation and voting during the EGZB’s consideration of her request for relief). In the present matter, the Petitioner would like to obtain and raise chickens in order to provide his children with an education opportunity which would have been part of his sixth grader’s curriculum had distance learning not been deemed necessary due to the pandemic. The Petitioner’s purchase of his home predates his initial appointment to the Zoning Board. While the relief sought does not appear to involve a significant economic impact, it does involve a personal, as opposed to commercial, venture. 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 in order to allow the Petitioner or his authorized representative to appear before the Zoning Board to seek the special use permit necessary to allow the Petitioner to raise chickens at his personal residence in order to enhance the distance learning education of his children. However, section 5(e)(1)(i-iii) authorizes the Ethics Commission to condition such exception upon the Petitioner’s agreement to follow certain steps aimed at reducing any appearance of impropriety. 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 participation and voting 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. Finally, in the event that the matter of the Petitioner’s application is not resolved on October 27, 2020, and the Petitioner is elected to the Jamestown Town Council this November, the Petitioner is advised to seek further guidance from the Ethics Commission before appearing before the Zoning Board or authorizing another to appear on his behalf with regard to this or any matter. 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. 2020-15 A.O. 2017-6 A.O. 2011-34 Keywords: Hardship Exception