Advisory Opinion No. 2021-19

Rhode Island Ethics Commission

Advisory Opinion No. 2021-19

Approved: March 16, 2021

Re:  Jason J. Rainone

QUESTION PRESENTED

The Petitioner, a member of the Town of Warren 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, in order to seek review and approval of proposed renovations to his primary residence and/or appeal a decision, if necessary, by the Warren Voluntary Historic District Commission relative to such renovations.   

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of Warren Zoning Board of Review, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing oneself before one’s own board, in order to seek review and approval of proposed renovations to his primary residence and/or appeal a decision, if necessary, by the Warren Voluntary Historic District Commission relative to such renovations.   

The Petitioner is a member of the Town of Warren Zoning Board of Review (“Zoning Board”).  He represents that he was first appointed by the Warren Town Council (“Town Council”) as an alternate Zoning Board member for the period of 2016 to 2018.  He further represents that, upon the expiration of that term, he was appointed as a full Zoning Board member and he has served as such since.  The Petitioner states that, in 2013 and prior to his appointment to the Zoning Board, he purchased a home where he lives with his family and which is his primary residence.  He adds that the home is located in the Warren Historic District and dates back to the early 1800’s. 

The Petitioner states that he and his wife have hired an architect and are in the planning stages of significant renovations to their home in order to provide an adequate disabled living space for his mother-in-law.  He explains that the renovations will include modifications to both the interior and exterior of the home.  The Petitioner represents that, because the home is considered a “zero-lot-line” property where the front face of the home sits on, or in very close proximity to, the street-side front property line, any renovations will require application to the Zoning Board for approval of dimensional variances.  Additionally, he states that, because his home is located within the Warren Historic District, any changes to his home’s exterior will also require approval by the Warren Voluntary Historic District Commission (“HDC”).  The Petitioner represents that the Zoning Board does not have appointing authority over the HDC; rather, the HDC members are appointed by the Town Council.  The Petitioner notes that the HDC ordinarily has its own Board of Appeals that reviews appeals of decisions made by the HDC; however, due to current vacancies that prohibit achievement of a quorum, the HDC’s Board of Appeals is presently unable to review such appeals and, therefore, the appeals are reviewed by the Zoning Board sitting as the Building Board of Appeals.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether he may appear before the Zoning Board in order to seek review and approval of his renovation plans and/or appeal, if necessary, any HDC decision(s) relative to those renovations.

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 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.  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 Petitioner’s specific circumstances represented 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 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. 

Previously, the Ethics Commission has applied the hardship exception in somewhat similar situations.  In Advisory Opinion 2020-15, for example, the Ethics Commission opined that a member of the Exeter Zoning Board of Review (“EZB”) qualified for a hardship exception, allowing him to appear before the EZB 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 by at least a decade.  See also A.O. 2017-37 (granting a hardship exception to a member of the Tiverton Harbor and Coastal Water Management Commission (“Commission”), allowing him to appear before that agency to appeal a denial of his mooring registration renewal application, given that he had owned the mooring for 37 years prior to his appointment to the Commission and had utilized the mooring in connection with his business that he had owned for 28 years, 8 years prior to his appointment); 2011-34 (granting a hardship exception to a member of the East Greenwich Zoning Board (“EGZB”), allowing her to appear before the EGZB to seek a dimensional variance needed to build a storage shed at her personal residence that she had acquired prior to her appointment to the EGZB).

Here, the Petitioner would like to renovate his home that he has owned since 2013, three years prior to his initial appointment to the Zoning Board.  The Petitioner states that such renovations are necessary in order to create an adequate disabled living space for his mother-in-law.  Considering the Petitioner’s above representations, the applicable provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e)’s prohibitions.  Accordingly, the Petitioner may represent himself, either personally, or through legal counsel or other representative, before the Zoning Board relative to the proposed renovations to his primary residence.  This would include seeking the dimensional variance and/or appealing a decision of the HDC before the Zoning Board sitting as the Building Board of Appeals, when such HDC decision is relative to changes to the exterior of the Petitioner’s residence associated with the proposed renovation.  However, the Petitioner must recuse himself from participating in the Zoning Board’s consideration of, and voting on, any matter relative to the renovations of his home.  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(d)
§ 36-14-5(e)
§ 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. 2017-37
A.O. 2014-26
A.O. 2011-34

Keywords :
Hardship Exception