Advisory Opinion No. 2005-32 Re: Mario P. Celico QUESTION PRESENTED: The petitioner, a member of the Town of Westerly Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Westerly Planning Board and Westerly Town Council to request a zone change which would allow the petitioner to relocate his retail business. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Westerly Planning Board, a municipal appointed position, may appear before the Westerly Town Council and Westerly Planning Board to request a zone change which would allow the petitioner to relocate his business since the circumstances justify a finding of hardship under R.I. Gen. Laws § 36-14-5(e)(1). The petitioner is a member of the Westerly Planning Board and is appointed by the Town Council. The petitioner is seeking approval of an application to change the current zoning of a parcel of property which would allow him to relocate his retail business. The petitioner represents that he owns an ice cream shop located on Route 1 in Westerly, which is his primary business. The petitioner informs that his current lease on the Route 1 property was set to expire last year, but the owner of the property extended the lease for one additional year. The petitioner advises that he has a pending Purchase and Sales Agreement regarding property also located on Route 1 in Westerly – approximately 1/8 of a mile from his current location. The petitioner represents that he has owned “Dusty’s of Dunn’s Corner” for the past thirteen (13) years. The petitioner’s wife has worked at the business since 1996 and it is her sole employment. The petitioner states that because of the nature of the business, an ice cream shop, the Route 1 location is a prime site for such a business as it is located near the beaches in Westerly. The petitioner represents he has developed a customer base which would disappear if he were forced to relocate outside of Westerly or to another location within Westerly. Furthermore, the business’s trade name is tied to Dunn’s Corner and to abandon the area would force the petitioner to change the trade name and lose its associated good will. The petitioner seeks guidance from the Ethics Commission based upon the clear language of Section 5(e)(1) that he is prohibited from appearing before the board of which he is a member. The petitioner represents that he does not wish to give a presentation to the Planning Board, but would like to answer any questions that may arise as a result of his application. However, the petitioner represents that if he is not allowed to appear, then he will be forced out of business due to his lease’s expiration. The petitioner informs that he has researched property within Westerly to relocate his business for the past eleven (11) months. He states that he reviewed the Assessor’s Map and that the only other property available that would suit his business needs, and would not require a zone change, was another property located on Route 1. Unfortunately, the owner of that property refused to sell or lease the property to the petitioner. The property that the petitioner has a Purchase and Sales Agreement on is currently zoned as “residential with a special use permit for non-conforming use” with two (2) motels located on it. The petitioner is requesting a change from the above described use to a “business – highway/commercial use.” Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. Further, the petitioner 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), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one (1) year after the petitioner has officially severed his position with the agency. The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. Accordingly, section 5(e)(1) prohibits the petitioner from representing himself before the Westerly Planning Board unless the Commission allows such appearance under a "hardship exception." 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. 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. 2004-33, the Commission granted a hardship exception to a member of the Exeter Town Council and his spouse to appear before the Exeter Planning Board to request a special use permit to establish a home-based business on their residential property. 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. Here, the subject property solely involves the petitioner’s primary business. While the petitioner’s property rights did not pre-exist his appointment to the Planning Board, his ownership interest in his ice cream business has existed for approximately thirteen (13) years. More importantly, the petitioner has represented that he has tried to find other alternative business locations to avoid appearing before the Planning Board but there are no other alternatives. 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 may bring request for a zone change before the Planning Board and/or Town Council based on a finding of hardship under R.I. Gen. Laws § 36-14- 5(e). The petitioner is required to recuse himself from voting or otherwise participating in the Planning Board’s consideration of his application. The petitioner must also complete a statement of conflict of interest and deliver a copy to both the Planning Board and Ethics Commission in accordance with R.I. Gen. Laws §§ 36-14-5(e)(1)(i) and 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) Advisory Opinions: 2004-33 2001-30 Keywords: Hardship Property Interest Revolving Door