Advisory Opinion No. 2000-84

Re: Michael J. Rzewuski

QUESTION PRESENTED

The petitioner, Chair of the Charlestown Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he and his spouse may appear before the Charlestown Zoning Board regarding a variance for their residential property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chair of the Charlestown Zoning Board of Review, a municipal appointed position, and his spouse may appear before the Charlestown Zoning Board of Review, either personally or through counsel, regarding a variance application for their residential property based on a finding that this situation constitutes a hardship exception to relevant revolving door prohibitions.

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 and for a period of one year following his or her official severance from the agency. In cases of hardship the Ethics Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardship exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were the official’s or employee’s principal residence, the official’s or employee’s place of business, or similar circumstances. See, e.g., A.O. 89-71; A.O. 94-38; A.O. 98-97; GCA 11.

Here, the property at issue is the petitioner’s principal residence. He advises that he and his spouse wish to remodel their home to accommodate future retirement needs, including handicap access. Based on these factors, the Commission finds that the circumstances involving this property fall within the vested property exception to Section 5(e) described above. The Commission therefore concludes that the petitioner and his spouse may bring the request for a zoning variance before the Zoning Board, either personally or through counsel, pursuant to R.I. Gen Laws § 36-14-5(e). The petitioner must recuse from participation and vote in the Board’s consideration of their request. Notice of recusal must be filed with both the Zoning Board and the Ethics Commission in accordance with R.I. Gen Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-6

Related Advisory Opinions:

2000-51
2000-50
2000-45
99-127
98-105
98-113
98-97
98-94
98-12
97-146
94-38
94-19
89-71
GCA 11

Keywords:

Hardship exception
Property interest
Recusal