Advisory Opinion No. 2007-42 Advisory Opinion No. 2007-42 Re: James A. Seveney QUESTION PRESENTED The petitioner, a member of the Portsmouth Town Council, a municipal elected position, requests an advisory opinion as to whether he may appear before the Portsmouth Zoning Board of Review (“Board of Review”) 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 Portsmouth Town Council, a municipal elected position, may appear before the Portsmouth Zoning Board of Review (“Board of Review”) 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 for in R.I. Gen. Laws § 36-14-5(e)(1). The petitioner has been a member of the Portsmouth Town Council (“Town Council”) since November of 2004. The petitioner represents that when he was first elected to the Town Council in 2004, he resided at 75 Macomber Lane in Portsmouth with his immediate family, while his mother lived across the street at 72 Macomber Lane in the home that she owned. He further states that his mother passed away in 2006 and her estate passed to the petitioner and his two brothers, both of whom reside in Texas. In the interest of downsizing his living space as a result of his children leaving home, the petitioner decided to sell his residence at 75 Macomber Lane and acquire his brothers’ interests in 72 Macomber Lane in order to make that his principal residence. Thus, in March of 2007, the petitioner sold his residence at 75 Macomber Lane and acquired, by their agreement, his brothers’ interests in 72 Macomber Lane. The petitioner informs that the residence at 72 Macomber Lane is his primary family residence and has a small living area at 1,084 square feet. The petitioner represents that this residence was constructed prior to the adoption of the zoning code in Portsmouth, that his lot is substandard, and that virtually no reasonable expansion can be accommodated without some form of variance relief from the Board of Review. The petitioner further represents that the structure is utilized solely as a family residence and that his request for relief does not involve the implementation of any commercial or business activity. The petitioner states that soon after acquiring his brothers’ interests, he applied for a building permit to perform some internal remodeling on 72 Macomber Lane and was subsequently informed by the Building Official that his plans would require a dimensional variance from the Board of Review. The petitioner filed the appropriate paperwork with the Board of Review in April of 2007. The petitioner represents that he retained legal counsel in the person of Vernon L. Gorton, who represented him at the subsequent hearings before the Board of Review on May 17, June 21, and June 28, 2007. Thereafter, on August 17, the petitioner received a copy of Complaint No. 2007-8 dated August 10, filed with the Ethics Commission, claiming that the petitioner had violated the Code of Ethics by representing himself before a subsidiary board of the Portsmouth Town Council, members of which are appointed by the Portsmouth Town Council, in violation of Commission Regulation 36-14-5016(a)(3). In his response to the complaint, the petitioner advised that the Town Council appoints the members of the Board of Review, but that he was totally unaware that appearing before this board would in any way constitute a violation of the Code of Ethics. In particular, the petitioner asserted that neither he nor his counsel were aware of the Commission’s adoption of Regulation 5016, which expanded the definition of when a person will “represent him or herself before a state or municipal agency” to include “before another agency for which he or she is the appointing authority or a member therof.” In conjunction with his response, the petitioner requested the instant advisory opinion and caused his variance application to be held without further action pending advice from this Commission. On September 11, 2007, the Commission dismissed Complaint No. 2007-8 at initial determination. 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. See R.I. Gen. Laws § 36-14-5(a). Furthermore, he may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See 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). 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 Commission 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. See 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 variance from the Board of Review, 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 Board of Review 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 Board of Review 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 finally, whether the relief sought involves a primarily commercial venture. Under a totality of the circumstances analysis, no single factor is determinative. The Commission contemplated a similar fact pattern in Advisory Opinion 2007-19. In that opinion, the Commission considered whether a Little Compton Town Council Member could appear before the Little Compton Zoning and Planning Boards regarding a variance for his residential property. The Commission opined that the unique facts as represented in that circumstance justified application of the hardship exception as provided in R.I. Gen. Laws§ 36-14-5(e)(1), subject to the petitioner’s recusal from Zoning and/or Planning Board appointments until after the election cycle following the resolution of the petitioner’s variance application. See also 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 principal residence, which has been in his family for many years. While the petitioner has only been the sole property owner of the residence since 2007, he has had an ownership interest in the property since his mother’s death in 2006, and his mother owned the home prior to the petitioner’s appointment to the Portsmouth Town Council in 2004. 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 Board of Review 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 Board of Review regarding a variance for his residential property, subject to his recusal from Zoning Board of Review appointments as discussed above, based on a finding that this particular situation justifies application of the hardship exception as provided for in R.I. Gen. Laws § 36-14-5(e)(1). Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-7(a) Regulation 36-14-5016 Related Advisory Opinions : 2007-19 2006-34 2004-33 2002-67 99-127 Keywords : Hardship Exception Property Interest