Advisory Opinion No. 2021-18 Rhode Island Ethics Commission Advisory Opinion No. 2021-18 Approved: March 16, 2021 Re: Charles B. Allott, Esq. QUESTION PRESENTED: The Petitioner, a member of the Newport 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 representing oneself before one’s own board, for purposes of seeking a dimensional variance to construct a storage shed at his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Newport Zoning Board of Review, 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 dimensional variance to construct a storage shed at his personal residence. The Petitioner represents that he has been serving on the Newport Zoning Board of Review (“Zoning Board”) since his appointment in February of 2016 and that he is currently it’s chairperson. He states that he resides in the City of Newport (“City” or “Newport”) in a home that he purchased with his partner in May of 2014. He explains that he would like to construct a storage shed in the backyard of his property. However, in order to do so, he will need to request a dimensional variance for set-back relief from the Zoning Board. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to allow him to appear either personally or through a representative before the Zoning Board to seek the variance needed to construct the shed.[1] 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). Furthermore, 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. Section 36-14-5(e)(1) (“section 5(e)”); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) 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, 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 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 36-14-5(e)(1). See, e.g., A.O. 2014-26 (granting a hardship exception to a member of the Barrington Zoning Board of Review (“BZB”) and permitting him to appear before the BZB to request a dimensional variance for his personal residence, but requiring that he recuse himself from participating and voting in the BZB’s consideration of his request for relief). 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 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 is 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. Previously, the Ethics Commission has applied the hardship exception in analogous situations. In Advisory Opinion 2020-15, for example, under similar circumstances, the Ethics Commission opined that a member of the Exeter Zoning Board of Review (“EZB”) qualified for a hardship exception to the Code of Ethics’ prohibition against representing oneself before his own board, for purposes of seeking a dimensional variance to construct a shed at his personal residence, the ownership of which predated his appointment to the EZB. See also 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member who needed a dimensional variance to build a storage shed at her personal residence that she acquired prior to her appointment to the Board). In the present matter, the Petitioner would like to construct a storage shed at his residence, the ownership of which predates his appointment to the Zoning Board by two years. Considering the Petitioner s above representations, consistent with prior advisory opinions issued, and the relevant provisions of the Code of Ethics, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e) s prohibitions to allow the Petitioner to represent himself either personally, through a legal counsel, or other representative before the Zoning Board to seek a dimensional variance to construct a storage shed at his personal residence. However, the Petitioner must recuse himself from participating in the Zoning Board’s consideration of, and voting on, any matter relative to his request for dimensional variance. Pursuant to section 5(e)(1), and concurrent with his recusal, the Petitioner must inform the other Zoning Board members of his receipt of the instant advisory opinion and of his recusal in accord therewith. Notice of recusal shall be filed with the Ethics Commission 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(e) § 36-14-5(d) § 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. 2020-15 A.O. 2014-26 A.O. 2013-21 A.O. 2011-34 A.O. 2010-47 A.O. 2010-33 Keywords : Hardship Exception Property Interest [1] In his request letter, the Petitioner also inquires regarding whether, in the event that he chooses to retain the services of an attorney to represent him on the variance matter, the Petitioner is obligated to then recuse himself any time that attorney appears before the Zoning Board. The Ethics Commission has consistently opined that an ongoing attorney-client relationship creates a business association for purposes of the Code of Ethics. See, e.g., A.O. 2010-47; A.O. 2010-33. Therefore, if the Petitioner is to employ an attorney to represent him before the Zoning Board, then the Petitioner must recuse from any Zoning Board matter which may financially impact that attorney or in which the attorney appears or presents evidence or arguments before the Zoning Board. While the Code of Ethics clearly prohibits the Petitioner from participating in matters directly affecting his current business associates, the recusal provisions of the Code of Ethics do not apply to matters that involve or impact the Petitioner’s former business associates. An attorney-client relationship ceases to constitute a business association once the attorney no longer represents the client in an ongoing matter, bills for prior representation have been paid, and there are no plans for specific representation in the near future. See A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client, provided that the representation had concluded; that all outstanding legal fees had been paid in full; and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). Given that the Petitioner’s question is general and hypothetical at this time, the Ethics Commission is unable to provide any specific advice and the Petitioner is advised to seek further guidance from the Ethics Commission when and if he is uncertain whether any particular future circumstances warrant his recusal.