Advisory Opinion No. 2007-19 Advisory Opinion No. 2007-19 Re: Paul Golembeske QUESTION PRESENTED: The petitioner, a member of the Little Compton Town Council, a municipal elected position, requests an advisory opinion as to whether he may appear before the Little Compton Zoning and Planning Boards regarding a variance for his residential property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Little Compton Town Council, a municipal elected official, may appear before the Little Compton Zoning and Planning Boards regarding a variance for his residential property based on a finding that the unique facts as represented justify application of the hardship exception as provided in R.I. Gen. Laws § 36-14-5(e)(1). The petitioner has been a member of the Little Compton Town Council (“Town Council”) since November of 2002 and currently serves as its Vice President. The petitioner advises that prior to his being elected to the Town Council, he served as a member of the Little Compton Planning Board for five (5) years. The petitioner informs that upon the death of his father in 1993, his mother became the sole owner of a sub-standard lot located in Little Compton, which is approximately 1.2 acres. The petitioner advises that the lot contains two (2) houses. The petitioner further advises that he and his wife first rented one of the houses located on the front part of the property from 1984 until 1986 and then from 1988 until the present time. The petitioner informs that his mother lives in the other house, which is located on the back portion of the property, and that she intends to gift this house to the petitioner’s brother and sister. The petitioner advises that his mother also intends gift the house that he currently lives in to he and his wife. The petitioner informs that Little Compton Zoning Ordinance requires that residential lots be at least two (2) acres in size. As such, according to the petitioner, not only does he have a sub-standard lot, but the houses on the property violate the “one house per one lot rule.” The petitioner represents that in order for his mother to gift the house to the petitioner, he must appear before the Zoning and Planning Boards to seek a subdivision variance. The petitioner advises that the Town Council appoints the members of the Zoning and Planning Boards. Given these representations, the petitioner requests that he be allowed to appear before the Zoning and Planning Boards to request a subdivision variance pursuant to the hardship exception. 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). A recent amendment to the Code of Ethics clarifies that the prohibition on representing oneself also includes representing oneself before another agency for which he or she is the appointing authority or a member thereof. See Regulation 36-14-5016. Absent an express finding of hardship by the Commission, section 5(e)'s 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 for which he is the appointing authority. The petitioner wishes to seek the issuance of a subdivision variance from the Zoning and Planning Boards, the members of which he appoints in his capacity as a Town Council member. Having determined that section 5(e) prohibits the petitioner's application to the Zoning and Planning Boards at this time, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the petitioner to proceed before the Zoning and Planning Boards 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 or principal place of business; whether the official’s interest in the property is pre-existing to his public office or is 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 a similar fact pattern in Advisory Opinion 2004-33. In that case, the Commission opined that a member of the Exeter Town Council and his spouse could appear before the Exeter Planning Board to request a special use permit to establish a home-based business on their residential property since the circumstances justify a finding of hardship under R.I. Gen. Laws § 36-14-5(e)(1). The Commission did, however, opine that because the Town Council served as the appointing authority for the Zoning and Planning Board, the petitioner was prohibited from participating in the appointment of individuals to either board until the completion of the next election cycle. Additionally, the Commission has in the past allowed public officials to appear before their own boards based upon a finding of hardship when it concerned the officials’ residential property. See A.O. 2002-67 (opining that the Chair of the Charlestown Zoning Board of Review and his spouse could appear before the Zoning Board of Review regarding a variance application for their residential property based upon a finding that the situation constituted a hardship exception to relevant revolving door prohibitions); A.O. 99-127 (opining that a Town of Narragansett Zoning Board member could appear before the Zoning Board regarding property she owned prior to serving on the Board based upon a finding that her situation constituted a hardship exception). In the instant case, the property the petitioner seeks a variance for involves his personal residence, which has been in his family for many years. The petitioner has lived there continuously since 1988, which predates his membership to either the Planning Board or the Town Council. The Commission is of the opinion that the totality of these particular circumstances do justify making an exception to section 5(e)'s prohibitions. However, in order to lessen any appearance of impropriety, the Commission instructs the petitioner to recuse from the Town Council’s appointment or reappointment of any person to the Zoning and/or Planning Boards until after the election cycle following the resolution of the petitioner’s variance application. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner may appear before the Zoning and Planning Boards regarding a variance for his residential property, subject to his recusal from Zoning and/or Planning Board appointments, based on a finding that this particular situation constitutes a hardship exception as provided in 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) Regulation 36-14-5016 Advisory Opinions : 2006-43 2006-34 2004-33 2002-67 99-127 Keywords : Hardship Property Interest