Advisory Opinion No. 2004-33

Re: Michael C. Cerullo

QUESTION PRESENTED:

The petitioner, a member of the Exeter Town Council, a municipal elected position, requests an advisory opinion as to whether he and/or his spouse may appear before the Exeter Planning Board to request a special use permit to establish a home-based business on their residential property.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Exeter Town Council, a municipal elected position, and his spouse may appear before the Exeter Planning Board to request a special use permit to establish a home-based business on their residential property since the circumstances justify a finding of hardship under R.I. Gen. Laws § 36-14-5(e)(1). However, because the Town Council serves as the appointing authority for the Zoning and Planning Boards, the petitioner must not participate in the appointment of individuals to either board until completion of the next election cycle in November 2004.

The petitioner informs that he is a licensed mental health counselor and would like to counsel clients in his home. The petitioner informs that he has no other office in which to meet clients. The petitioner further informs that he and his wife resided on the property long before he was elected to the Town Council. The petitioner represents that the Town Council is the appointing authority for the Planning Board. The petitioner and his spouse have applied to the Planning Board for a special use permit in order to establish a home-based business on their residential property. The petitioner now comes to ask the Commission whether the Code of Ethics restricts or limits his application to the Planning Board.

Under the Code of Ethics, a public official 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. See R.I. Gen. Laws § 36-14-5(e)(1). 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 appoints, is analogous to appearing before one’s own board. See A.O. 2001-29; A.O. 95-110. Section 5(e)(1)’s prohibitions are stricter than virtually any other provisions in the Code. 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. This is not the case with Section 5(e)(1). Absent an express finding by the Commission that a hardship exists, the prohibitions in that section are absolute. There is no definition for “hardship” in the statute, nor has the Commission promulgated one.

The hardship exception can be applied in a variety of situations. Here, the petitioner seeks relief specific to his residential property. As such, the Commission will limit its review of the hardship exception to instances involving real property.

In considering questions of hardship on a case by case basis, the Commission has focused on a totality of the circumstances including, but not limited to, the following factors: whether the subject property involves the official’s principal residence and/or place of business, whether the official’s employment interest or property right is pre-existing or recently acquired and whether the relief sought involves a commercial venture. Under a totality of the circumstances analysis, no single factor is determinative. Rather, the presence or absence of each circumstance must be considered in the totality.

In looking back at past advisory opinions, the Commission has applied the hardship exception where the matter involved a residential property and the relief sought involved the official’s place of business. For example, in A.O. 2001-30 the Commission concluded that a Providence Senior Assistant City Solicitor could appear before the Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to a rental property that he had owned for several years. The Commission’s finding of hardship was based primarily upon two circumstances: (1) Without the approval of the HDC, the petitioner’s property would fall into disrepair, and (2) the petitioner planned to establish his private law offices within the first floor of the property. To achieve the latter, the petitioner had to appear before the Zoning Board to request a change to add a second use as professional. Additionally, the petitioner indicated that he might convert one of the property’s rental units into his principal residence. In A.O. 98-97, the Commission granted a hardship exception to a Glocester Planning Board member who sought a variance and special use permit to sell produce from a barn located on the same property as his principal residence. The Commission declined to grant a hardship exception in A.O. 2000-41. There, an Exeter Zoning Board member sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property. Although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner. The Commission opined that allowing a hardship exception under such circumstances would, in effect, render Section 5(e)(1)’s prohibitions a nullity. See also A.O. 97-146 (concluding that a North Kingstown Zoning Board member could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer).

Here, the subject property involves the petitioner’s principal residence. The petitioner’s property right pre-existed his election to the Town Council. The relief sought involves a proposed commercial venture. However, that venture involves the petitioner’s primary place of business. Taking into account the totality of the circumstances as well as past advisory opinions, the Commission finds that there are sufficient factors to justify application of the hardship exception. Therefore, the Commission concludes that the petitioner and his spouse may bring their request for a special use permit before the Planning Board based on a finding of hardship under R.I. Gen. Laws § 36-14- 5(e). Because the Town Council serves as the appointing authority for the Zoning and Planning Boards, the petitioner must not participate in the appointment of individuals to either board until completion of the next election cycle in November 2004.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

2003-49

2003-33

2002-8

2001-30

2001-29

2000-84

2000-41

99-127

99-49

98-105

98-97

98-94

98-12

95-110

Keywords:

Hardship Exception