Advisory Opinion No. 2002-8

Re: James Durkin

QUESTION PRESENTED

The petitioner, a Narragansett Town Councilor, a municipal elected position, requests an advisory opinion, as to whether he may appear before the Town Council, personally or through counsel, to request a zone change for property purchased prior to his election and for which the zoning presently is uncertain.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Narragansett Town Councilor, a municipal elected position, may appear before the Town Council, either personally or through counsel, to request a zone change for property purchased prior to his election. The grant of a hardship exception to the revolving door prohibitions contained in R.I. Gen. Law § 36-14-5(e) is specifically based upon the unique circumstances surrounding the property at issue.

Prior to his election to the Narragansett Town Council in November 2000, the petitioner and his spouse purchased property designated as Plat L, Lots 282, 286 and 287 in the Town of Narragansett. He represents that the property had been zoned commercially to allow limited business use since the inception of the Town’s Zoning Ordinance. He informs that the previous property owner petitioned the Town Council in 1998 to change the zone designation to residential. At that time, the Council relied upon an out-dated zoning map, which resulted in zoning various portions of the subject property as residential, commercial and/or of undetermined designation. Correspondence from the Narragansett Town Solicitor confirms that, as a result of the Council’s prior action, the lots currently are split zoned and the zoning must be corrected. The petitioner advises that he and his spouse were unaware of the erroneous zoning when they purchased the property in May 2000 and the discrepancies are not reflected in the Town’s Land Evidence Records. They seek to establish the appropriate zone determination for the property to allow commercial use in conformance with its historical designation.

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). 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. 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, pre-existing or recently acquired property rights or employment, or whether the matter involved a significant economic impact.

In prior advisory opinions, the Commission has found hardships to exist where the vested property interests at issue involved a principal residence or place of business. 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 petitioner may appear before the Narragansett Town Council, either personally or through counsel, to request zoning relief for property purchased prior to his election, given that the zoning of the property currently is uncertain due to prior Council error. The unique circumstances faced by the petitioner are similar to those addressed by the Commission in Advisory Opinion 2001-30. There, the Commission opined that the Assistant Solicitor for the City of Providence could seek relief before the Providence Historic District Commission (HDC), for which he served as legal counsel, to make repairs and modification to rental property that he had owned for several years. The location of the property within a historic district required the HDC to review and approve any repairs. Absent the grant of a hardship exception, the pre-existing rental property interest would fall into disrepair. Similarly, but for the grant of a hardship exception, the zoning of the petitioner’s property would remain dubious.

In previous opinions, the Commission has held that for purposes of applying R.I. Gen. Laws § 36-14-5 (e), an individual appearing before a board, the members of which he or she appoints, is analogous to appearing before one's own board. See, e.g.., A.O. 94-19; A.O. 89-52; A.O. 89-50. Here, the petitioner may appear before other municipal bodies in the Town of Narragansett as needed to obtain the proper zoning designation for his property. See A.O. 2001-29 (concluding that a Narragansett Town Councilor may appear before the Narragansett Zoning Board of Review, either personally or through counsel, to request specific relief for a business that he owned prior to his election to the Council based on a finding of hardship exception to Section 5(e)).

Finally, the petitioner must recuse from the Town Council’s consideration of any matter involving his property interests, including necessary amendments to the Zoning Ordinance and/or Comprehensive Plan to correct the erroneous zoning designation. Notices of recusal should be filed with both the Ethics Commission and the Town of Narragansett in accordance with R.I. Gen. Law § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-6

Related Advisory Opinions:

2001-30

2001-29

2000-84

2000-45

98-113

98-105

98-97

98-12

97-146

94-38

94-19

92-68

89-71

89-52

89-50

Keywords:

Hardship exception

Property interest

Recusal

Revolving door