Advisory Opinion No. 2021-12 Rhode Island Ethics Commission Advisory Opinion No. 2021-12 Approved: February 9, 2021 Re: William E. McIntosh QUESTION PRESENTED: The Petitioner, a former member of the Richmond Planning Board, a municipal appointed 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 within a period of one year following his official severance from said board, for purposes of appearing before the Planning Board, whether individually or through legal counsel, relative to applications involving the development of two pieces of property, both of which were purchased by the Petitioner prior to his appointment to the Planning Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Richmond Planning Board, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition against appearing before one’s own board within a period of one year following his official severance from said board, for purposes of appearing before the Planning Board, whether individually or through legal counsel, relative to applications involving the development of two pieces of property, both of which were purchased by the Petitioner prior to his appointment to the Planning Board. The Petitioner was a member of the Town of Richmond (“Town” or “Richmond”) Planning Board (“Planning Board”) for a period of seven weeks, between December 15, 2020 and January 31, 2021, having been appointed by the Richmond Town Council (“Town Council”) due to a vacancy. The Petitioner states that, during the seven-week period in which he was a member of the Planning Board, the Planning Board met only once, at which time the Petitioner participated in the discussion and voting on two agenda items and recused from participation in the discussion and voting on a third agenda item. The Petitioner further states that, on January 19, 2021, a vote by the Town Council on the matter of his re-appointment to a full 3-year term as a member of the Planning Board was tabled in light of the pendency of the instant advisory opinion. The Petitioner has since informed Ethics Commission staff of his decision to withdraw his candidacy for reappointment to the Planning Board at least until such time as all matters involving the properties that are the subject of the instant advisory opinion have been resolved at the Planning Board stage. The Petitioner represents that in his private capacity he is the owner and operator of McIntosh Land Development and Real Estate. The Petitioner further represents that, in 2018, he purchased property from the Town with plans to create affordable housing on it. He adds that the property, located at 3 Carolina Nooseneck Road (“Carolina Nooseneck”), had been zoned and labeled by the Planning Board as the highest suitable location for affordable housing in Richmond in the Town’s 2012-2020 Comprehensive Plan, and that the Town Council was aware of the Petitioner’s intent to build an affordable component subdivision (“subdivision”) on the Carolina Nooseneck property, given the demand for dwelling units of this type in Richmond. The Petitioner represents that, immediately after purchasing the Carolina Nooseneck property, he began the application process for its subdivision, but was denied by the Planning Board at the Master Plan stage. He further represents that he filed an appeal in the matter to the State Housing Appeals Board (“SHAB”) in February of 2020 and, in part due to delays associated with the COVID-19 pandemic, said appeal has yet to be heard but is scheduled for February 22, 2021.[1] The Petitioner explains that, in the event his appeal to the SHAB is successful, he must once again present his Master Plan Application to the Planning Board. The Petitioner notes that he has invested a considerable amount of money in the purchase and planned subdivision of the Carolina Nooseneck property and that he would suffer substantial financial impact if he is unable to complete it. It is in the context of these facts that the Petitioner asks whether he, be it individually or through legal counsel, may appear before the Planning Board relative to this project. The Petitioner states that, in 2019, he purchased a second piece of property in Richmond, the address for which is 22 Old Mountain Trail (“Old Mountain”), which is located approximately one mile away from the Carolina Nooseneck property. The Petitioner explains that he purchased the Old Mountain property with plans to transfer the affordable housing component from the subdivision at the Carolina Nooseneck property to the Old Mountain property so that all of the affordable housing units could be placed in a single family area where the values of surrounding properties are in the same range. He states that his application for a land transfer was denied by the Planning Board, prior to his appointment to the Planning Board, adding that the denial of his land transfer application led to his having to engineer the Carolina Nooseneck and Old Mountain properties separately and simultaneously at a substantial cost of money and time. He states that his Application for Preliminary/Final Approval concerning the Old Mountain property, which he describes as a fairly administrative procedure, is expected to go before the Planning Board in February of 2021. The Petitioner explains that he would suffer substantial financial impact if he is unable to complete the subdivision of the Old Mountain property. It is in the context of these facts that the Petitioner also asks whether he, be it individually or through legal counsel, may appear before the Planning Board relative to this project.[2] 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 (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). See, e.g., A.O. 2014-26 (granting a hardship exception to a member of the Barrington Zoning Board of Review (“BZB”), permitting him to appear before the BZB to request a dimensional variance for his personal residence, but requiring him to recuse himself from participating and voting during the BZB’s consideration of his request for relief). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition against representing oneself before an agency of which he was a member prior to the expiration of a period of one year following his official severance from that agency. 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 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 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. 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. The Ethics Commission also declined to grant a hardship exception in Advisory Opinion 2003-49, where the Assistant Solicitor for the Town of Lincoln (“Lincoln”) wished to represent himself before the Lincoln Town Council, Zoning Board, and Planning Board relative to the development of two parcels of real estate that he owned in Lincoln. The hardship exception was not granted because the petitioner’s ownership of the lots did not predate his appointment as Assistant Solicitor, and it was uncertain as to whether either lot would be used as the petitioner’s primary residence or simply resold in commercial transactions after development. See also A.O. 2000-41 (declining to grant a hardship exception to a member of the Exeter Zoning Board who sought to generate additional income by entering into a contract to locate a cellular communications tower on his residential property because the proposed commercial venture served only to generate additional income for the petitioner). In contrast, the Ethics Commission has occasionally granted a hardship exception in situations involving commercial ventures where exceptional circumstances were present. For example, in Advisory Opinion 2018-24, the Ethics Commission granted a hardship exception to a member of the Scituate Town Council (“Town Council”) allowing him to represent himself, either personally or through a representative, before the Scituate Plan Commission, for which the Town Council was the appointing authority, to obtain a preliminary/final approval of a Comprehensive Permit Application (“application”). The application related to a parcel of undeveloped land on which the petitioner had planned to build a housing development consisting of 18 condominium units, a number of which would be deemed affordable housing under circumstances where affordable housing in the Town of Scituate fell below the required percentage. In opining that the totality of the circumstances justified granting a hardship exception to section 5(e)’s prohibitions, the Ethics Commission relied upon the petitioner’s representation that he had purchased the property, filed the Comprehensive Permit Application, and obtained a Master Plan Approval prior to his election to the Town Council. The petitioner had further represented that, absent preliminary/final approval from the Scituate Plan Commission, he stood to suffer significant economic impact due to his considerable investment to date. Additionally, in Advisory Opinion 2018-5, the Ethics Commission granted a hardship exception allowing another member of the Scituate Town Council to appear before various boards for which the Town Council was the appointing authority to obtain approvals to restore and renovate his commercial property which had been damaged in a fire. There, the circumstances were such that the petitioner had operated a store on the property for several years prior to his election to the Town Council. The property had been extensively damaged by fire and could not reopen absent certain approvals by one or more of the boards. The petitioner was not seeking any extraordinary relief from the Town of Scituate’s building and zoning ordinances and had suffered a substantial financial hardship due to the continuing loss of income from his business. See also A.O. 2002-8, (granting a hardship exception to a Narragansett Town Council member, allowing him to appear before the Town Council in order to establish the appropriate zone determination for his property which he had purchased several months prior to his election to the Town Council, given that the zoning of the property was uncertain due to prior Council error); A.O. 2010-19 (granting a hardship exception to an alternate member of the Newport Zoning Board, allowing him to appear before his own board and appeal the denial of a building permit to refurbish unused space for commercial rental use within a residential rental property, where his ownership predated his public service and where the desired use was consistent with prior use and had the least financial impact on the petitioner). In the present matter, the Petitioner purchased the Carolina Nooseneck property and began the application process for a subdivision, the denial of which led to the filing of an appeal before the SHAB, all prior to his appointment to the Planning Board. Should the hearing for that appeal, which is imminent, be decided in the Petitioner’s favor, the Petitioner must once again appear before the Planning Board if he is to proceed with his plans for the subdivision of the Carolina Nooseneck property. Similarly, the Petitioner purchased the Old Mountain property and filed an application for a land transfer of the affordable housing component of the Carolina Nooseneck property to the Old Mountain property prior to his appointment to the Planning Board. The denial of the Petitioner’s land transfer application led to his having to engineer the two properties separately and simultaneously at a substantial cost of money and time. His Application for Preliminary/Final Approval relative to the Old Mountain property, which he describes as a fairly administrative procedure, is expected to go before the Planning Board in February of 2021. Additionally, the Petitioner only served as a member of the Planning Board for a period of seven weeks, during which time the Planning Board met only once. Accordingly, based on the Petitioner’s representations, the applicable provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of 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 Planning Board within a period of one year following his official severance from it. Therefore, the Petitioner may appear before the Planning Board, either individually or through legal counsel, relative to the applications involving the development of the Carolina Nooseneck and Old Mountain properties. 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: § 36-15-5(e) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5006) Related Advisory Opinions: A.O. 2018-24 A.O. 2018-5 A.O. 2014-26 A.O. 2010-19 A.O. 2006-43 A.O. 2003-49 A.O. 2002-8 A.O. 2000-41 Keywords: Hardship Exception Property Interest