Advisory Opinion No. 2006-43

Advisory Opinion No. 2006-43

Re: Marc Zawatsky


The petitioner, a member of the Barrington Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he may seek Planning Board approval for a Comprehensive Permit to construct an affordable housing development.


It is the opinion of the Rhode Island Ethics Commission that the petitioner, while a member of the Barrington Planning Board and for a period of one year thereafter, is prohibited by the Code of Ethics from seeking Planning Board approval for a Comprehensive Permit to construct an affordable housing development.

The petitioner is a member and Vice Chair of the Barrington Planning Board.  He asserts that at a "Growth Smart" seminar attended by all town officials, legal counsel to the Planning Board stated that "a board member may appear before their board as a private citizen, upon submission of a recusal form."  The petitioner asserts that, relying on legal counsel's comment at the seminar, in July 2006 he purchased property from his parents that is adjacent to his primary residence for the purpose of developing it as a twenty-five percent (25%) affordable housing development.  The petitioner states that he has spent more than $40,000 on surveys, wetland flagging, civil and architectural designs and legal fees in furtherance of this project. 

The petitioner notes that his proposed development will require a Comprehensive Permit from the Town of Barrington, and that the Barrington Planning Board is the review authority for such permit applications.  The petitioner submitted an application for a Comprehensive Permit to the Barrington Town Planner, and a hearing before the Planning Board was scheduled for September 6, 2006.  On July 28, 2006, the petitioner executed a notice of recusal that was filed with the Ethics Commission, stating that he would recuse from participation, discussion and voting at the Planning Board's hearing on the subject application.  The petitioner states that the Planning Board's legal counsel then advised him that recusal may not be sufficient to avoid the potential conflict.  Given legal counsel's concerns, the hearing was continued until the petitioner could obtain an advisory opinion from the Ethics Commission.

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.  See R.I. Gen. Laws § 36-14-5(e)(1).  Absent an express finding of hardship by the Commission and instructions on how to proceed while minimizing any appearance of impropriety, 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).

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.

As an initial matter, the petitioner's proposed conduct falls squarely within section 5(e)'s prohibition on representing oneself before a municipal agency of which one is a member.  The petitioner wishes to seek issuance of a Comprehensive Permit from the Planning Board, of which he is not only a member but is also the Vice Chair.  Although the petitioner asserts that he does not intend to represent himself before the Board at its hearing on his application, it is our opinion that there is very little difference between such personal representation and an appearance by a representative who appears in the petitioner's name and pursuant to the petitioner's direction and authority.  Indeed, the Ethics Commission recently approved an amendment to the Code of Ethics to, among other things, clarify

that section 5(e) also prohibits a public official from authorizing another person to represent him before his own board.  See Commission Regulation 36-14-5016.[1]

Having determined that section 5(e) prohibits the petitioner's application to the Planning Board at this time, the Commission next considers whether the circumstances justify a finding of hardship and permission to proceed before the Planning Board with certain restrictions.  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 in cases involving property:  Whether the subject property involves the official’s principal residence; whether the subject property involves the official's principal place of business; whether the official’s interest in the property is pre-existing or recently acquired; and whether the relief sought involves a primarily commercial venture.  Under a totality of the circumstances analysis, no single factor is determinative.

The Commission considered an analogous fact pattern in Advisory Opinion 97-146.  There, a member of the North Kingstown Zoning Board of Review wished to apply to the Zoning Board for certain variances relating to a residential subdivision in North Kingstown for which he was the developer.  The Commission determined that the facts fell "squarely within the parameters of Section 5(e)(1)" given that the petitioner was a member of the Zoning Board and that matters relating to the subdivision he was developing fell within the Zoning Board's jurisdiction. The Commission also noted that the petitioner could not avoid 5(e)'s restrictions by enlisting a representative and/or counsel to appear before the Board on his behalf.  The Commission wrote:  "Substantively, there is no difference between a personal appearance by a public official or employee and an appearance by a representative or counsel on his or her behalf."  A.O. 97-146 at p. 1.  The Commission also concluded that the circumstances did not justify a finding of hardship.

The Commission similarly declined to grant a hardship exception in Advisory Opinion 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 resold in commercial transactions after development.  See also A.O. 2000-41 (Exeter Zoning Board member not permitted to seeking Zoning approval to allow construction of cellular communications tower on his residential property).

In the instant case, the Commission is of the opinion that the totality of the circumstances do not justify making an exception to section 5(e)'s prohibitions.  The property the petitioner seeks to develop is not his residence or his place of business.  Rather, development appears to be in furtherance of a commercial venture.  Furthermore, the petitioner's legal interest in the property, acquired mere months ago, does not predate his appointment to the Planning Board.  Even if we accept that the petitioner received and relied on faulty advice from a speaker at a town seminar, such reliance is not a sufficient basis to support an exception to the Code of Ethics' longstanding and widely known prohibition against a public official bringing his or her own financial interests before his or her own board. 

Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner, while a member of the Barrington Planning Board and for a period of one year thereafter, is prohibited from bringing before the Planning Board an application for a Comprehensive Permit to construct an affordable housing development.

Code Citations :






Regulation 36-14-5016

Advisory Opinions :








Keywords :


Property Interest

[1] "In addition to any other definition or provision of the Code of Ethics:  (a) A person will 'represent him or herself before a state or municipal agency' if . . . (2) pursuant to his or her authorization and/or direction, another person participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his or her favor[.]"  Commission Regulation 36-14-5016.