Advisory Opinion No. 2000-51

Re: Patrick Bolger

QUESTION PRESENTED

The petitioner, the former Chairperson of the Town of Jamestown's Harbor Management Commission, a municipal appointed official, requests an advisory opinion as to whether he may represent himself before the Harbor Management Commission regarding a riparian rights issue given that resolution of the issue may impact his or his spouse’s property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the former Chairperson of the Town of Jamestown's Harbor Management Commission, a municipal appointed position, may appear before the Jamestown Harbor Management Commission, personally or through counsel, regarding an issue relating to riparian owners notwithstanding the fact that his or his spouse’s property may be affected by resolution of the issue. The hardship exception to Section 5(e) of the Code of Ethics and the Public Forum Exception both provide a basis for his appearing before the Commission given that the petitioner did not bring the matter before the Commission, he has not participated in this matter as a Harbor Management Commission member, and the matter at issue impacts his and his spouse’s residential property which he has owned for the last four years, prior to his appointment to the Commission.

The petitioner advises that he was the Chairperson of the Jamestown Harbor Management Commission. He was appointed to the Commission approximately two years ago and his term ended approximately one week ago. He believes he may be appointed to the Harbor Management Commission again in the future. The petitioner states that neighbors are seeking a determination from the Jamestown Harbor Management Commission as to whether people who have rights to a pedestrian easement are riparian owners. Riparian owners would be entitled to a mooring in the waters that lie at the termination of the easement. The petitioner and/or his wife have owned the residential property on Narragansett Bay for the past four years. The property has a pedestrian easement that straddles his property line. The petitioner would like to appear before the Commission when it considers the issue and speak as a citizen, either personally or through counsel.

Section 36-14-5(e) of the Code of Ethics prohibits a public official or employee from “representing him or herself” before an agency of which he or she is a member while a member and for one year after the official severance from that position. In cases of hardship, the Ethics Commission may allow exceptions to this blanket prohibition. In previous advisory opinions, the Commission has granted hardship exceptions only in situations where vested property interests in a principal residence or office were involved. See, e.g., A.O. 89-71; A.O. 94-38; A.O. 98-97; GCA 11. Commission Regulation 36-14-7003, the Public Forum Exception, provides that any person may publicly express his or her viewpoint in a public forum on any matter of general public interest or on any matter that directly affects said individual.

Here, the matter concerns property adjacent to the petitioner’s residence brought before the Harbor Management Commission through no action of his own. Therefore, the Commission finds that the circumstances involving this matter fall within the vested property exception to Section 5(e). The petitioner may appear before the Harbor Management Commission, either personally or through counsel, regarding the zoning application based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e). He must do so only as a private citizen so long as he does not receive access or priority not available to any member of the public. This, of course, does not apply to executive sessions, since those meetings are not generally accessible to the general public.

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
99-124
98-105
98-97
98-94
98-12
97-146
97-85
94-38
94-19
92-68
89-71
GCA 11

Keywords:

Hardship Exception
Property Interest
Public Forum Exception