Advisory Opinion No. 2002-67

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 Board regarding a dimensional 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 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. 98-97; A.O. 94-38; A.O. 89-71; GCA 11.

In Advisory Opinion 2000-84, the Commission previously concluded that the petitioner and his spouse could appear before the Charlestown Zoning Board for relief relative to the remodeling of their home to accommodate their future retirement needs, including handicap access. There, the Commission specifically found a hardship exception to the revolving door prohibitions of the Code of Ethics. The identical property is at issue here as the petitioner and his spouse continue to remodel their home consistent with the Commission’s prior opinion. Accordingly, the Commission finds that the circumstances involving this property fall within the vested property exception to Section 5(e) described above. The petitioner and his spouse may appear before the Zoning Board, either personally or through counsel, to request relief relative to the remodeling of their residence. The petitioner must recuse from participation and vote in the Zoning Board’s consideration of their request for relief. Notice of recusal must be filed with 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:

2000-84

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