Advisory Opinion No.2004-37

Re: Peter D. Ruggiero, Esq.

QUESTION PRESENTED

The petitioner, an Assistant Town Solicitor for the Town of Exeter, a municipal appointed position, requests an advisory opinion regarding whether he may represent himself before the Exeter Zoning Board to obtain a variance.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Assistant Town Solicitor for the Town of Exeter, a municipal appointed position, may represent himself before the Exeter Zoning Board to obtain a variance.

The petitioner represents that he serves as an Assistant Town Solicitor for the Town of Exeter, appointed by the Town Council to work exclusively for the Exeter Planning Board. He advises that he and his wife wish to build a primary residence for themselves on a parcel of land located in the Town. Due to insufficient frontage, the petitioner is required to seek a frontage variance from the Exeter Zoning Board. According to the petitioner, the Zoning Board has exclusive jurisdiction to grant or deny the variance request.

The petitioner informs that the Zoning Board is represented by its own attorney through the office of the Town Solicitor. He further represents that he has never performed legal services for the Zoning Board in the past, and does not anticipate performing any legal services for the Board in the future. Given these representations, the petitioner asks whether he is permitted to appear before the Zoning Board to press his application.

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 or by which he or she is employed 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.

The provisions of section 5(e) do not apply in this case, since the petitioner does not seek to appear before the Exeter Planning Board, the agency he represents as an Assistant Town Solicitor. See A.O. 96-84 (section 5(e) prohibits former Jamestown Planning Board member from appearing before Planning Board, but not Zoning Board, until a year following his resignation from Planning Board). Accordingly, based upon the facts as represented by the petitioner, the Ethics Commission is of the opinion that the Code of Ethics does not prohibit the petitioner from representing himself before Exeter Zoning Board.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

2003-49

98-97

96-84

Keywords:

hardship exception

revolving door