Advisory Opinion No. 2006-34 Advisory Opinion No. 2006-34 Re:T. Brian Handrigan QUESTION PRESENTED The petitioner, a member of the Narragansett Town Council, a municipal elected position, requests an advisory opinion regarding whether his attorney or other representative may appear on his behalf before the Narragansett Planning Board and/or Zoning Board for design and site plan review for proposed development of property owned by the petitioner in the Town of Narragansett. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner's representatives may appear on his behalf before the Narragansett Planning Board and/or Zoning Board for design and site plan review of proposed development for property owned by the petitioner in the Town of Narragansett 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 Narragansett Town Council. He represents that from March 1995 through December 2004, the petitioner and another individual had leased real estate located at 235 Sand Hill Cove Road in Narragansett. This property, according to the petitioner, is primarily vacant land used for parking and rental space to camping trailers. The property also contains two small, single-story business structures. The petitioner states that throughout his tenancy, the terms of the lease allowed the landlord to sell the property but granted the petitioner a first right of refusal/option to purchase. The petitioner represents that in 2003 the landlord began marketing the property for sale. In order to continue his occupancy of the property, according to the petitioner, he was required to negotiate a purchase pursuant to his right of first refusal. The petitioner asserts that these negotiations led to his purchase of the property at a price of $950,000, half of which was paid with a mortgage loan. The debt service on this loan, says the petitioner, exceeds the income generated by the property's current use. According to the petitioner, the property is currently zoned for commercial and mixed use. The petitioner contemplates developing the property by building a structure with a retail space on the ground level and one or more residences on a second floor. The petitioner advises that this would be a permitted use under the current Zoning Ordinance, but that such development requires design and site plan review by the Narragansett Planning Board. An appearance before the Narragansett Zoning Board would be required in the event of an appeal from the Planning Board, or if proposed development required application for a zoning variance or special use permit. However, the petitioner states that as contemplated the proposed development will not require such relief. Given these representations and the petitioner's status as a member of the Narragansett Town Council, which is the appointing authority for the Planning Board and Zoning Board, he asks the Commission to apply a hardship exception to allow his attorney or other professional representative to appear before these boards as necessary so that he may develop the subject property. The petitioner states that he will not personally appear before the boards. In order to further reduce any actual or potential conflict of interest, the petitioner states that he will recuse from participation in the appointment of any members of the Planning Board or Zoning Board, and will also recuse from participating in the Town Council's approval of a Director of Community Development. Furthermore, the petitioner states that he will not participate in any Personnel Appeal Board issues that may involve Town personnel involved in Planning or Zoning Board matters. Under the Code of Ethics, a public official 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. Laws § 36-14-5(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. Laws § 36-14-5(d). Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing 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. Laws § 36-14-5(e)(1). Absent an express finding of hardship by the Commission, this prohibition continues while the official remains in office, and for a period of one year thereafter. R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). The Commission has consistently held that that section 5(e)'s prohibitions apply equally to a public official's appearances before a subsidiary board made up of members appointed by the official's own board. See A.O. 2004-33; A.O. 2001-29; A.O. 95-110. Section 5(e)’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). 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. 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 allow the petitioner to provide mental health counseling out of an office in his primary residence. However, because the Town Council served as the appointing authority for the Zoning and Planning Boards, the petitioner was instructed to not participate in the appointment of individuals to either board until completion of the next election cycle. Similarly, 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. Most recently, in A.O. 2005-32 the Commission granted a hardship exception to a member of the Westerly Planning Board to appear before his board to seek a zone change for property he is purchasing to continue the operation of his retail ice cream business. The Commission's finding of a hardship was largely premised upon the petitioner's representations regarding the imminent termination of his current lease and the necessity of finding a new location in the same area that would preserve his customer base and associated goodwill. The Commission declined to grant a hardship exception in A.O. 2003-49. There, the Assistant Solicitor for the Town of Lincoln wished to represent himself before the Lincoln Town Council, Zoning Board and Planning Board regarding the development of two parcels of real estate he owned in the Town. The factors disfavoring application of the exception were that the petitioner's ownership of the lots did not predate his appointment as Assistant Solicitor, and the uncertainty of whether either lot would be used as the petitioner's primary residence or simply resold in commercial transactions after development. The Commission also declined to find a hardship 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). In the instant case, the Commission is of the opinion that the totality of the circumstances justify making an exception to section 5(e)'s prohibitions. The petitioner's legal interests in the subject property (leasehold and purchase option) are longstanding and predate his election to the Town Council. It appears that the petitioner's outright purchase of the property, while occurring during his term of election, was necessary to continue this longstanding and preexisting occupancy. Furthermore, the petitioner states that the proposed development is a permitted use in an appropriately zoned area, requiring only site and design review. To help mitigate any appearance of impropriety, the petitioner states that he will recuse from the Town Council's participation in the appointment of persons to the Planning Board, Zoning Board or to the position of Director Community Development. The petitioner also states that he will recuse from any Personnel Appeal Board issues that may involve Town personnel involved in Planning or Zoning Board matters. Such recusals must continue until and unless the petitioner is reelected to the Town Council following the conclusion of all business he has before the Planning and/or Zoning Board, and shall be a condition to this finding of hardship. Notice of recusal must be filed with the Town Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner's representatives may appear on his behalf before the Narragansett Planning Board and/or Zoning Board for design and site plan review of proposed development for property owned by the petitioner in the Town of Narragansett since the circumstances justify a finding of hardship under R.I. Gen. Laws § 36-14-5(e)(1). Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) Advisory Opinions : 2005-32 2004-33 2003-49 2001-30 2000-41 Keywords : Hardship Property Interest