Advisory Opinion No. 2021-42 Rhode Island Ethics Commission Advisory Opinion No. 2021-42 Approved: June 8, 2021 Re: Gregory A. Mancini QUESTION PRESENTED: The Petitioner, a member of the North Kingstown Town Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing oneself before the North Kingstown Historic District Commission, and/or potentially the North Kingstown Zoning Board of Review, entities over which the Town Council has appointing authority. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Kingstown Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing oneself before the North Kingstown Historic District Commission, and/or potentially the North Kingstown Zoning Board of Review, entities over which the Town Council has appointing authority. The Petitioner was elected to serve as a member of the North Kingstown Town Council (“Town Council”) in 2018 and is currently its President. He represents that he would like to install a small portable shed in the backyard of his home where he wishes to store his and his spouse’s two bicycles. The Petitioner states that he and his spouse purchased the home, which is their primary residence, in 2010 and have resided there continuously since. The Petitioner explains that, because the home is located within the Town of North Kingstown (“Town”) Historic District, it is subject to the jurisdiction of the Historic District Commission (“HDC”) and any changes to their home’s exterior require approval by the HDC, over which the Town Council has appointing authority. The Petitioner states that denials by the HDC are appealable to the North Kingstown Zoning Board of Review (“Zoning Board”), over which the Town Council also has appointing authority. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to allow him to appear before the HDC to seek permission to build the shed and/or the Zoning Board, if necessary, to appeal any denial thereof. 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(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). Pursuant to Regulation 1.1.4(A)(1)(a), a person will represent himself before a state or municipal agency if he “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his [] favor.” 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 receiving a hardship exception, the public official must also “[f]ollow 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 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). The Petitioner’s proposed conduct falls within the Code of Ethics’ prohibition on representing himself before an agency for which he is the appointing authority. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by him herein justify a finding of hardship to permit him to appear before the HDC and, if necessary, 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. When deciding whether to apply the hardship exception, the Ethics Commission considers the totality of the circumstances and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions to public officials who sought to appear before boards for which they were the appointing authority regarding their personal residences. In Advisory Opinion 2020-34, for example, the Ethics Commission granted a hardship exception to the Vice Chairperson of the Bristol Town Council and permitted him to represent himself before the Bristol Historic District Commission, over which the Bristol Town Council had appointing authority, in order to seek approval of proposed renovations to his primary residence, purchased prior to his election to the Town Council. In order to avoid any appearance of impropriety, the Ethics Commission required the petitioner to recuse from the Town Council’s appointment or reappointment of any persons to the HDC until after the election cycle for his Town Council seat following the complete resolution of the HDC’s review and approval of his renovation plans, including any appeals. See also A.O. 2019-64 (granting a hardship exception to the President of the North Smithfield Town Council and permitting him to appear before the North Smithfield Zoning Board of Review to seek a dimensional variance for his personal residence, which he purchased prior to his election, provided that he recused from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle for his Town Council seat and following the complete resolution of his application before the Zoning Board, including appeals, and that, prior to the Zoning Board’s consideration of his variance application, he informed the Zoning Board members of his receipt of an advisory opinion and that, consistent therewith, he would recuse from their reappointments). Here, the Petitioner would like to construct a small portable shed in the backyard of his home where he wishes to store his and his spouse’s two bicycles. The Petitioner has owned his home since 2010, which predates his election to the Town Council by eight years. Considering the Petitioner’s above representations, the applicable provisions of the Code of Ethics, and consistent with past advisory opinions issued, it is the opinion of the Ethics Commission that the totality of these particular circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may represent himself, either personally or through a representative, before the HDC relative to seeking permission to construct the shed, and/or before the Zoning Board in the event that the HDC denies the request and the Petitioner chooses to appeal the HDC’s decision. However, in order to avoid any appearance of impropriety, the Petitioner must recuse from the Town Council’s appointment or reappointment of any persons to the HDC until after the election cycle for his Town Council seat following the complete resolution of the HDC review and approval of his request to construct the shed, including any appeals. Likewise, if the Petitioner appeals an unfavorable decision by the HDC to the Zoning Board, the Petitioner must recuse from the Town Council’s appointment or reappointment of any persons to the Zoning Board until after the election cycle for his Town Council seat following the complete resolution of the appellate review by the Zoning Board. Notice of recusal must be filed consistent with section 36-14-6. Additionally, the Petitioner shall, prior to his appearance before the HDC and/or the Zoning Board relative to his request or appeal, inform the HDC and/or the Zoning Board members of his receipt of the instant advisory opinion and that, consistent herewith, he will recuse from their reappointments as set forth above. 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) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2020-34 A.O. 2019-64 A.O. 2014-4 Keywords: Hardship Exception