Advisory Opinion No. 2020-52 Rhode Island Ethics Commission Advisory Opinion No. 2020-52 Approved: December 8, 2020 Re: Joseph M. Montesano QUESTION PRESENTED: The Petitioner, a member of the Westerly Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from representing himself before the Westerly Zoning Board in connection with the remodel and expansion of his primary residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Planning Board, a municipal appointed position, is not prohibited by the Code of Ethics from representing himself before the Westerly Zoning Board in connection with the remodel and expansion of his primary residence. The Petitioner has been a member of the Westerly Planning Board (“Planning Board”) since December of 2019. Originally appointed by the Westerly Town Council (“Town Council”) to fill a vacancy as an alternate member, the Town Council has since appointed the Petitioner to serve as a full member. His present term ends in 2023. The Petitioner states that he is in the process of preparing an application to the Westerly Zoning Board (“Zoning Board”) seeking relief from setback and impervious coverage[1] requirements in connection with the remodel and expansion of his primary residence (“the project”). He further states that, like the members of the Planning Board, the members of the Zoning Board are appointed by the Town Council. The Petitioner informs that during the entitlement process for the project he will not be required to represent himself, or ask anyone else to represent him, before his own board, the Planning Board. He seeks guidance from the Ethics Commission not only to confirm his belief that the Code of Ethics does not prohibit him from appearing before the Zoning Board relative to the aforementioned application, but to be able to place an advisory opinion from the Ethics Commission on the record at any Zoning Board meetings at which he appears in connection with the application. 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); Commission Regulation 1.1.4 Representing Oneself or Others, Defined (36-14-5016) (“section 5(e)”). 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 “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). See, e.g., A.O. 2014-4 (granting a hardship exception to a member of the Portsmouth Town Council and permitting him to represent himself before the Portsmouth Zoning Board in order to seek a variance for his personal residence, provided that, in order to avoid any appearance of impropriety, he recused from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle following the resolution of his applications for zoning relief). Here, the Petitioner represents that the members of both the Planning Board and the Zoning Board are appointed by the Town Council, and that he seeks to appear before the Zoning Board over which he does not have appointing authority. Thus, the Petitioner’s proposed conduct does not fall within the Code of Ethics’ prohibition on representing oneself before his own agency or before an agency over which he has appointing authority. Having determined that section 5(e)’s prohibitions do not apply to the Petitioner it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from appearing before the Zoning Board in connection with the remodel and expansion of his primary residence. 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) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2014-4 Keywords: Representing Oneself or Others [1] Impervious cover is any type of surface that does not absorb rainfall.