Advisory Opinion No. 2021-50 Rhode Island Ethics Commission Advisory Opinion No. 2021-50 Approved: August 17, 2021 Re: Tom Doyle QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Sewer Commission, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before an agency of which he is a member in order to appeal a sewer assessment against his personal residence. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the New Shoreham Sewer Commission, a municipal appointed position, may appear before that agency in order to appeal a sewer assessment against his personal residence, based upon a finding that the unique facts as represented justify application of the hardship exception as provided in R.I. Gen. Laws § 36-14-5(e). The Petitioner is a member of the New Shoreham Sewer Commission (“Sewer Commission”) to which he was appointed by the New Shoreham Town Council (“Town Council”) in 2013.[1] The Petitioner states that he resides in the Town of New Shoreham, also known as Block Island (“Town” or “Block Island”), in a home that he purchased with his wife in 1989 and which has been their primary, full-time residence since 2004. The Petitioner represents that last April he noticed a pinhole leak in one of the water pipes in the basement of his home and contacted several plumbers to fix the problem. The Petitioner explains that Block Island’s resident plumber retired last year after many years of service and that two of his contemporaries are now deceased. The Petitioner tried to engage plumbers located off Block Island to no avail. Ultimately, the Petitioner was able to hire a plumber who happened to be helping out one of the Petitioner’s acquaintances on Block Island. The Petitioner states that the plumber was able to fix the leak in the water pipe as of May 12, 2021.[2] However, by that time, because the Petitioner’s sewer bill is based on water usage, his sewer bill was $800 as compared to $190 for the same time period the year before. The Petitioner states that he would like to appeal these sewer charges before the Sewer Commission.[3] Cognizant of the Code of Ethics’ prohibition against appearing before the Sewer Commission, given his membership on it, the Petitioner seeks a hardship exception to allow him to appeal the sewer charges. He states that he will recuse from the Sewer Commission’s consideration of this matter. 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); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Commission Regulation 1.1.4”). Pursuant to Commission Regulation 1.1.4(A)(1)(a), a person will “represent him or herself before a state or municipal agency” if he or she “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in his or her own favor.” 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 in order 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 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 Sewer Commission. 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; whether the matter involved a significant economic impact; and whether the official’s interests were brought before an agency by a third party. The Ethics Commission may consider other factors and no single factor is determinative. We do not believe that public officials should be prevented from challenging municipal assessments against their personal residences or their businesses, provided that they request and receive advisory opinions prior to representing themselves before agencies of which they are members, by which they are employed, or over which they have appointing authority. The Ethics Commission has previously granted hardship exceptions to public officials who sought to appear before agencies of which they were members or for which they were the appointing authority in connection with municipal assessments against either their personal residences or their businesses. See, e.g., A.O. 2020-18 (granting a hardship exception to a member of the Jamestown Town Council so he could appear before the Jamestown Tax Assessment Board of Review, over which the Town Council had appointing authority, in order to appeal the tax assessment of his personal residence); 2019-57 (granting a hardship exception to a Bristol Board of Tax Assessment Review member, permitting her to appear before her own board to appeal the tax assessment of her personal residence, provided that she recuse from participating in the board’s consideration of and voting on her appeal); A.O. 2015-8 (granting a hardship exception to a Woonsocket City Council member so that he could represent himself before the Woonsocket Board of Tax Review, over which he had appointing authority as a member of the City Council, in order to appeal the tangible property tax assessed against a business that he owned). Here, the Petitioner seeks to appear before the Sewer Commission, of which he is a member, to appeal the sewer charges incurred against his personal residence as a result of a leak in one of the home’s water pipes. The Petitioner has owned his home since 1989 and has resided there full-time since 2004, which predates his appointment to the Sewer Commission in 2013. Furthermore, the relief sought is personal as opposed to commercial in nature. In consideration of the facts as represented above, and consistent with the applicable provisions of the Code of Ethics and past 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 appear before the Sewer Commission to appeal the sewer charges assessed against his residence. However, the Petitioner must recuse himself from participating in the Water Commission’s consideration of, and voting on, the matter. Pursuant to section 5(e)(1), and concurrent with his recusal, the Petitioner must inform the other Sewer Commission members of his receipt of the instant advisory opinion and of his recusal in accordance 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(e) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions A.O. 2020-18 A.O. 2019-57 A.O. 2015-8 A.O. 2014-26 Keywords : Hardship Exception [1] The Petitioner states that he is also a member of the New Shoreham Water Commission (“Water Commission”) to which he was appointed by the Town Council in 2015. The Petitioner explains that the two commissions conduct joint meetings to discuss matters relative to rates, contracts, and other matters of general concern to both commissions; however, each of the commissions conducts its own separate meetings and reviews agenda items specific to the respective commissions. [2] The Petitioner informs that the plumber sent a letter to the New Shoreham Water Company, with copies to the Sewer and Water Commissions, informing it that he had fixed a water leak in the Petitioner’s home. [3] The Petitioner explains that because he utilizes a water well on his property and is not connected to the Town water system, he does not receive a water bill from the Town. Therefore, there is no need for him to appear before the Water Commission to appeal any water charges in connection with his aforementioned sewer charges.