Advisory Opinion No. 2000-41

Re: Clark A. Whitford, Jr.

QUESTION PRESENTED

The petitioner, an Exeter Zoning Board of Review member, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Zoning Board of Review regarding an application for a special use permit to construct a cellular communications tower on his property, provided that he recuses from the Board’s discussion and vote on the matter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Exeter Zoning Board of Review member, a municipal appointed position, may not appear before the Exeter Zoning Board of Review, either personally or through counsel, to seek approval for a special use permit to construct a cellular communications tower on his property. See R.I. Gen. Laws § 36-14-5(e).

The petitioner advises that Sprint Cellular Communications approached him about the possibility of locating a cellular communications tower on four acres of his property. The entire property comprises approximately one hundred acres and consists of several parcels, on which are located his residence, a single-family rental property, a convenience store and the Town Transfer Station. The petitioner acquired the property, which has been in his family for over a century, approximately thirty years ago. He indicates that a cellular tower may be located in that zoning area pursuant to a special use permit. He represents that he has notified the Board in writing of his interest in the matter and recused himself from consideration of the application. He further advises that, unless he is able to generate more revenue from his property to pay his high property taxes, he may be forced to sell some of his land.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Law § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Law § 36-14-5(d). Further, he may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Law § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his position with the agency.

Section 5(e)(1)’s prohibitions are stricter than virtually any other provisions in the Code of Ethics. In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. Not so with Section 5(e)(1), however. Absent an express finding by this Commission that a hardship exists, the prohibitions in that section are absolute. In other words, recusal is not an option unless the Commission determines that it is justified by a hardship. No definition for “hardship” is found in the statute, nor has the Commission promulgated a definition. In considering questions of hardship on a case by case basis the Commission has focused on factors such as whether the matter to come before an agency involved a vested property right, whether the matter involved pre-existing or recently acquired property rights or employment, and whether the matter involved a significant economic impact.

In previous advisory opinions, the Commission has found hardships to exist where the vested property interests at issue involved a principal residence or office. See A.O. 99-127 (concluding that a Narragansett Zoning Board member may seek relief from the Board to construct a single-family residence on previously owned property); A.O. 98-113 (finding that a Narragansett Zoning Board member may petition the Board to seek relief regarding property he intends to purchase for his personal residence); A.O. 98-105 (opining that the Narragansett Zoning Board Chairperson and his spouse may seek a variance and special use permit from the Board to construct a deck and a shed on their property). However, absent some extraordinary circumstances, the hardship exception has not, and should not, be extended to property interests acquired as part of a business venture. See A.O. 97-146 (concluding that a North Kingstown Zoning Board of Review member may not appear before that Board, personally or through counsel, to seek approval for certain variances relating to a residential subdivision in North Kingstown for which he is the developer).

The Commission concludes that the circumstances presented by the petitioner do not justify a finding of hardship. Unlike previous situations in which the Commission has found hardships to exist, the property interest at issue here pertains to a commercial business venture between the petitioner and Sprint Cellular Communications. The purpose of that venture is to generate additional income for the petitioner. Allowing a hardship exception in circumstances such as this would, in effect, render Section 5(e)(1)’s prohibitions a nullity.

Therefore, the petitioner may not appear before the Zoning Board of Review, either personally or through counsel, to request a special use permit to construct a cellular communications tower on his property. Said prohibition extends for one year after he has officially severed his position with the Board. See R.I. Gen. Law § 36-14-5(e)(4). Finally, the petitioner is reminded that notices of recusal should be filed with both the Ethics Commission and the Town of Exeter in accordance with R.I. Gen. Law § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(e)(1)

36-14-6

Related Advisory Opinions:

99-127

98-113

98-105

98-97

98-12

97-146

94-38

94-19

92-68

89-71

GCA 11

Related Case Law:

Thomas DiLuglio v. RIEC, 726 A.2d 1149 (R.I. 1999)

Keywords:

Hardship exception

Property interest

Recusal

Revolving door