Advisory Opinion No. 2007-18 Advisory Opinion No. 2007-18 Re: Ronald F. Manni QUESTION PRESENTED: The petitioner, a member of the Smithfield Town Council, a municipal elected official, requests an advisory opinion regarding whether, upon his recusal, he may speak at a public hearing before the Town Council regarding a new liquor license petition for a restaurant located within 200 feet of the petitioner's residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Town Council, a municipal elected official, may speak at a public hearing before the Town Council regarding a new liquor license petition for a restaurant located within 200 feet of his residence, provided he recuses himself from the Council's consideration and voting regarding the license. The petitioner is a member of the Smithfield Town council. He represents that a Smithfield business, Susan Loo's Restaurant ("the Restaurant"), has filed a petition with the Town Council seeking a new liquor license for the premises. The petitioner states that his residence is located within 200 feet of the Restaurant, making him a legal abutter for purposes of the petition. For this reason, the petitioner states that he intends to recuse from participation in the Town Council's discussion and voting relative to the petition. The petitioner states that the outcome of the Restaurant's petition could have an effect on his property and on the entire neighborhood. For that reason, he wishes to speak at the Town Council's public hearing on the petition to present his views. Section 5(e) of the Code of Ethics generally prohibits a public official such as the petitioner from representing himself before any agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1). This section contains an exception that allows such self-representation upon recusal and a determination by the Ethics Commission that a denial of self-representation would create a hardship. See § 36-14-5(e)(1)(i)-(iii). Additionally, the Code of Ethics contains a "Public Forum Exception" which provides that there shall be no violation of the Code of Ethics "by virtue of any person publicly expressing his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child." Commission Regulation 36-14-7003. The issue of this particular liquor license application directly affects the petitioner, given that his residence legally abuts the applicant restaurant. See A.O. 2002-30 (Commission applies rebuttable presumption that property owner will be financially impacted by actions concerning abutting property). Accordingly, the Commission is of the opinion that the facts here support allowing the petitioner to address the Town Council, upon his recusal, under both the hardship exception to section 5(e) and the Public Forum Exception. See A.O. 2003-59 (under the Public Forum Exception, a member of Scituate Town Council who owns a business next door to a prospective liquor licensee may, upon recusal, address the Town Council regarding increasing number of liquor licenses); A.O. 97-85 (permitting the Central Falls City Solicitor to testify at a State Liquor Control appeal hearing or at a Central Falls Liquor Board hearing regarding the revocation of a license of a bar located adjacent to his private law offices since the matter fell within the hardship and public forum exceptions). The proper procedure for the petitioner to follow is to formally recuse from the license application upon its being called on the agenda. The petitioner must prepare a written recusal form and deliver a copy to both the Ethics Commission and to the presiding officer of the Town Council. See R.I. Gen. Laws § 36-14-6. Thereafter, the petitioner's right to address the Council is the same as any other abutter or resident, and the petitioner must abide by the same procedure and format for addressing the Council that applies to any other resident. Code Citations: 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7003 Related Advisory Opinions: 2003-59 99-30 98-52 98-12 97-85 96-111 96-108 96-75 95-65 Keywords: Public forum exception