Advisory Opinion 2021-54 Rhode Island Ethics Commission Advisory Opinion 2021-54 Approved: September 21, 2021 Re: Edward Brady QUESTION PRESENTED : The Petitioner, a former member of the Cranston City Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against appearing before one’s own board prior to the expiration of one year following one’s official severance therefrom, for purposes of authorizing and/or directing his business partner to appear before the Cranston City Council in order to seek the transfer of a liquor license in connection with the pending purchase of property. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Cranston City Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition against appearing before one’s own board prior to the expiration of one year following one’s official severance therefrom, for purposes of authorizing and/or directing his business partner to appear before the Cranston City Council in order to seek the transfer of a liquor license in connection with the pending purchase of property. The Petitioner was a member of the Cranston City Council (“City Council”) from June of 2017 through August 25, 2021. Initially appointed by the City Council to fill a vacancy in 2017, the Petitioner was later twice elected to serve two-year terms in both 2018 and 2020. The Petitioner states that, in his private capacity, he is one of the owners of the Dig In Dining Restaurant Group, which currently operates several restaurants in Rhode Island. The Petitioner states that he resigned from the City Council because he believes that he can better serve his community as a businessperson and philanthropist. He further states that he and a business partner have signed a Purchase and Sales Agreement (“PSA”) to jointly purchase the Park Theatre in Cranston from its current private owner. The Petitioner describes the Park Theatre as a historic site that has been closed now for more than a year, adding that it had gone up for auction after being listed for many months with no viable buyers. The Petitioner states that he and his business partner are looking to protect the continued growth of the arts in Cranston by purchasing the Park Theatre. The closing on the purchase is scheduled for November of 2021. The Petitioner represents that, in order to proceed with the purchase and revival of the Park Theatre, he and his business partner will need to seek permission from the City Council to transfer the full liquor license (“liquor license”) from the current owner. He further represents that the transfer of the liquor license is a contingency of the PSA. The Petitioner states that the application for the transfer of the liquor license will require an appearance before the City Council’s Safety Services & Licensing Committee (“Committee”) on which the Petitioner previously served and, assuming passage there, a vote by the full City Council to finalize the liquor license transfer. He further states that, in his experience as a member of the City Council, the transfer of a liquor license is typically a simple process, assuming that the current license holder has no debt owed to a distributor. The Petitioner represents that he is not aware of any debt owed by the seller of the Park Theatre to a distributor. The Petitioner states that he cannot recall the application for a transfer of a liquor license ever being denied while he served on the Cranston City Council or the Committee. He explains that his business partner would be the one to appear before both the Committee and the City Council, as has been their practice in the past for their existing restaurant in Cranston, the license for which was acquired eight years ago, well prior to the Petitioner’s appointment to the City Council. [1] Cognizant of the Code of Ethics, and desirous of acting in accordance therewith, it is in the context of the representations herein that the Petitioner asks whether his business partner may appear before the City Council, prior to the expiration of one year following the Petitioner’s resignation therefrom, for purposes of seeking the transfer of a liquor license. 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 Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). 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, section 5(e)’s 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 follow any other recommendations the Ethics Commission may make to avoid any appearance of impropriety in the matter. Section 5(e)(1)( iii). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition against representing himself, or authorizing another person to appear on his behalf, before an agency of which he was a member, prior to the expiration of one year following his official severance from said agency. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the circumstances represented by the Petitioner herein justify a finding of hardship to permit him to appear, and/or his business partner to appear on the Petitioner’s behalf, before the City Council in order to seek the transfer of a liquor license. 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 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. The Ethics Commission may consider other factors and no single factor is determinative. In prior advisory opinions, the Ethics Commission has declined to grant a hardship exception for matters involving new commercial ventures. For example, in Advisory Opinion 2006-43, the Ethics Commission declined to grant a hardship exception to a member of the Barrington Planning Board (“BPB”) who sought approval from his own board to construct an affordable housing development because the property was not the petitioner’s residence or principal place of business; the development appeared to be in furtherance of a commercial venture; and the petitioner’s legal interest in the property did not predate his appointment to the BPB. However, in Advisory Opinion 2006-54, under circumstances similar to those in the instant matter, the Ethics Commission did grant a hardship exception that allowed a member of the Lincoln Town Council to seek and obtain approval from the Lincoln Town Council to accept the transfer of a liquor license in conjunction with the petitioner’s purchase of a local restaurant. There, the petitioner represented that he would recuse from any consideration by the Lincoln Town Council consideration of the transfer, neither contact any member of the Lincoln Town Council concerning his application nor appear at any Lincoln Town Council hearing on the matter, and that he would be represented by an attorney before the Lincoln Town Council. The hearing would take place approximately one month prior to the termination of the petitioner’s office, for which the petitioner had not sought reelection. Although the circumstances determined to support a finding of hardship in Advisory Opinion 2006-54 included an acknowledgement of the petitioner’s precarious financial situation, the petitioner also stated that that he owned other liquor licenses in Rhode Island and Massachusetts which had always been renewed without difficulty. The petitioner further represented to the Ethics Commission that he had no reason to believe that that instant transfer, from one Lincoln restaurant to another, would not be granted pro forma. In granting the hardship exception to the petitioner in Advisory Opinion 2006-54, the Ethics Commission cited other advisory opinions resulting from similar requests and for which hardship exceptions under section 5(e) were granted relative to commercial ventures. See, e.g., A.O. 2006-34 (granting a hardship exception to allow a Narragansett Town Council member to seek and obtain design and site plan review from the Narragansett Planning Board and Zoning Board for the development of property owned by the petitioner, where the relief sought was limited to site plan review of a permitted use in an already appropriately zoned area under circumstances which required the petitioner to purchase the subject property in order to protect his preexisting use, and where the petitioner agreed to not personally appear before the boards or to participate in any appointments thereto until after subsequent elections. See also A.O. 2014-10 (granting a hardship exception that allowed a member of the Glocester Town Council to appear before that agency for purposes of renewing an earth removal license, provided that he recused from the Glocester Town Council’s discussion and vote regarding his license renewal application). In the instant matter, the Petitioner seeks a hardship exception which would allow his business partner to represent him before the City Council, prior to the expiration of one year following the Petitioner’s departure therefrom, for purposes of seeking the transfer of a liquor license in connection with the purchase of the Park Theatre for commercial use. Although the Petitioner’s ownership of the property for which he seeks the liquor license transfer does not predate his appointment to public office, and the relief sought involves a new commercial venture, those factors alone are not determinative. The Ethics Commission recognizes that, under these particular circumstances, the application for the transfer of the liquor license from one Cranston business to another is substantially ministerial in nature. The Ethics Commission is further satisfied with the Petitioner’s representation that, in his experience as a member of the City Council, the transfer of a liquor license is typically a simple process and that the Petitioner cannot recall the application for a transfer of a liquor license ever being denied while he served on the Cranston City Council or the Committee. Accordingly, based on the facts as represented, the relevant provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that the exceptional circumstances here justify the granting of a hardship exception to the Code of Ethics’ prohibition against the Petitioner appearing before the City Council within a period of one year following his official severance therefrom. Therefore, the Petitioner may authorize his business partner to represent him before the City Council for the purpose of seeking the transfer of the liquor license in connection with the sale of the Park Theatre. The Petitioner is held to his representation that he will not attend the hearing at which said application will be considered and is advised not to contact any member of the City Council concerning his application. 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. 2014-10 A.O. 2006-54 A.O. 2006-43 A.O. 2006-34 Keywords: Revolving Door [1] The Petitioner included in his letter seeking the instant advisory opinion a request that he also be granted a hardship exception that would allow him to pursue a tax stabilization agreement in connection with the purchase of the Park Theatre, which would also require an appearance before the City Council. The Petitioner has since withdrawn that request.