Advisory Opinion No. 2001-30

Re: John T. D'Amico, Jr., Esq.

QUESTION PRESENTED

The petitioner, the Senior Assistant Solicitor for the City of Providence, a municipal appointed position, requests an advisory opinion as to whether he may apply for relief before the Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to be performed on his rental property, given that the City of Providence Law Department acts as legal counsel to those entities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Senior Assistant Solicitor for the City of Providence, a municipal appointed position, may apply for relief before the Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to be performed to his rental property based on a finding that his situation constitutes a hardship exception to R.I. Gen. Laws § 36-14-5(e).

The petitioner is the Senior Assistant City Solicitor for the City of Providence, appointed by the City Solicitor. The City of Providence Law Department acts as legal counsel to all city boards, agencies and departments, including the Zoning Board, the Department of Inspections and Standards, and the Providence Historic District Commission (HDC). As the Senior Assistant Solicitor, the petitioner serves as counsel to the Department of Inspections and Standards. He does not serve as counsel to the Zoning Board or the HDC, but does supervise counsel to the HDC within the Law Department. The petitioner advises that he has owned rental property in Providence for approximately six years. He is seeking to perform certain repairs and modifications to his property that require review and approval by the HDC, as well as other municipal agencies that function under the auspices of the Department of Inspections and Standards. He represents that the HDC must approve needed repairs to the property’s stairs. Additionally, the area is zoned for both residential and professional use and the petitioner wishes to establish his private law offices in the first floor. Since the property presently is classified as residential, he must appear before the Zoning Board to request a change to add a second use as professional. Further, he intends to add a fourth rental unit, which also must be approved by the Zoning Board. Finally, he indicates there is a possibility that he would reside in one of the property’s rental units.

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), 7(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). The Code also prohibits him from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving the public position. R.I. Gen. Law § 36-14-5(e).

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. 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 petitioner wishes to make repairs and modifications to rental property that he has owned for several years. Given the location of the property within a historic district, the HDC must review and approve repairs to its stairs. A request for relief relating to necessary repair items, whether before the HDC or another municipal entity, clearly would fall within the hardship exception to Section 5(e) described above. To rule otherwise would permit a pre-existing property interest to fall into disrepair. Given that the petitioner supervises counsel to the HDC within the Law Department, his subordinate should not advise the HDC with regard to the petitioner’s request for relief. Another member of that Department who is not subject to the petitioner’s direct supervision should act as counsel in that matter.

The petitioner also wishes to make modifications to rental units within the subject property, including the establishment of his private law offices within the first floor. He represents that the area currently is zoned for both residential and professional use. Based on these factors, the Commission finds that these circumstances also would fall within the vested property exception to Section 5(e). See A.O. 98-97 (finding that a Glocester Planning Board member may appear before the Planning Board regarding variance and special use permit requests relating to the use of his barn where the property is zoned for agricultural and residential use and he sought relief to sell produce from his property); Compare A.O. 97-146 (concluding that a North Kingstown Zoning Board of Review member may not appear before the Zoning Board to seek approval for variances relating to a residential subdivision for which he is the developer). Accordingly, the Commission concludes that the petitioner may appear before the HDC, Zoning Board, and other municipal agencies which operate under the auspices of the Department of Inspections and Standards, either personally or through counsel, to request relief relating to his rental property based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e). However, he must recuse from acting as legal counsel in matters relating to his requests for relief. Notices of recusal must be filed with both the City of Providence 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

36-14-7(a)

Related Advisory Opinions:

2001-29

2000-84

2000-50

2000-45

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

Revolving door