Advisory Opinion No. 2021-46

Rhode Island Ethics Commission

Advisory Opinion No. 2021-46

Approved:  June 29, 2021

Re:  James B. King Jr.

QUESTION PRESENTED:

The Petitioner, a member of the Jamestown 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 the municipal agency of which he is a member, in order to seek a setback variance that is required to construct a garage on his personal residence. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Zoning Board of Review, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing oneself before the municipal agency of which he is a member, in order to seek a setback variance that is required to construct a garage on his personal residence. 

The Petitioner is a member of the Jamestown Zoning Board of Review (“Zoning Board”), having served in that capacity since his appointment by the Jamestown Town Council in 2018.  The Petitioner states that he resides in a home that he purchased in 2017.  He further states that his home does not currently have a garage and that he would like to construct one.  The Petitioner represents that in order to construct the garage, he will need to receive a setback variance from the Zoning Board. The Petitioner states that he has retained an attorney to represent him before the Zoning Board relative to his request for a setback variance and that the Petitioner will recuse from participation in Zoning Board discussions or decision-making on the matter.  Given this set of facts, the Petitioner requests a hardship exception to allow him to represent himself before the Zoning Board, either personally or through legal counsel, in order to seek the variance needed to construct the garage. 

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”).  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 within the Code of Ethics’ prohibition on representing himself before an 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 him 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 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 also consider other factors and no single factor is determinative.  See, e.g., A.O. 2020-15 (granting a hardship exception to an Exeter Zoning Board of Review member, allowing him to represent himself before his own board in order to seek a dimensional variance to construct a shed at his personal residence that he acquired prior to his appointment to the Zoning Board, but requiring him to recuse from participation and voting during the Zoning Board’s consideration of his request for relief); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member, allowing her to represent herself before her own board in order to seek a dimensional variance from the side-yard setback requirement to build a storage shed at her personal residence that she acquired prior to her appointment to the Board, but requiring her to recuse from participation and voting during the Zoning Board’s consideration of her request for relief).

In the present matter, the Petitioner seeks to obtain a setback variance in order to construct a garage at his personal residence.  The Petitioner’s purchase of his home predates his appointment to the Zoning Board and the relief sought involves a personal, as opposed to commercial, venture. Considering the Petitioner s above representations, the relevant provisions of the Code of Ethics, and 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 in order to allow the Petitioner or his authorized representative to appear before the Zoning Board in order to seek a setback variance which would allow the Petitioner to construct a garage at his personal residence.

However, section 5(e)(1)(i-iii) authorizes the Ethics Commission to condition such exception upon the Petitioner’s agreement to follow certain steps aimed at reducing any appearance of impropriety.  Pursuant thereto, the Petitioner must inform the other Zoning Board members of his receipt of the instant advisory opinion and that, consistent therewith, he will recuse from participation and voting during the Zoning Board’s consideration of his request for relief.  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(e)
§ 36-14-6
520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016)

Related Advisory Opinions:
A.O. 2014-26
A.O. 2020-15
A.O. 2011-34

Keywords: 
Hardship Exception