Advisory Opinion No. 2007-51 Advisory Opinion No. 2007-51 Re: Karen J. Gleason QUESTION PRESENTED: The petitioner, a member of the Portsmouth Town Council, a municipal elected position, requests an advisory opinion as to whether her spouse may appear before the Portsmouth Zoning Board of Review to seek a variance for property that they jointly own. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Portsmouth Town Council, or her spouse may appear before the Portsmouth Zoning Board of Review to seek a variance for property that they jointly own, based on a finding that the unique facts as represented justify application of the hardship exception provided in R.I. Gen. Laws § 36-14-5(e)(1). The petitioner is a member of the Portsmouth Town Council, having been elected to that position in November 2006. She represents that in 1981 she and her spouse purchased a lot of land in Portsmouth , built a house thereon and have resided there since 1983. She states that in 1985 they purchased a 10,000 square foot lot adjacent to their residence, and a year later constructed a 24’ by 24’ garage thereon. According the petitioner, it was her intent to some day construct a second residence on the adjacent lot. Indeed, in 1987 the petitioner and her husband perk tested the lot and received a septic system design approval from RIDEM. The petitioner informs that notwithstanding this approval, she was unable to afford construction on the lot until recently. In 2006, the petitioner and her spouse began plans to construct a single-family residence on the lot. The petitioner states that it is her intention to move into the new residence with her husband, and to allow their 24-year old son to reside next door at their current residence. According to the petitioner, she and her husband have obtained building design plans, hired an engineer to design a new ISDS system, and have received RIDEM approval for the system. She states that care was made to ensure that all designs complied with applicable zoning requirements, including a requirement that no more than twenty percent (20%) of the lot be covered by structures. However, she describes how all parties overlooked the fact that the existing garage’s square footage (576 sq. ft.), when added to the square footage of the new house footprint with decks (1876 sq. ft.), exceeds the twenty percent (20%) coverage limitation. Furthermore, the petitioner notes that the plans call for a front porch that, pursuant to Town zoning requirements, is too close to the front property line facing the street. According to the petitioner, in order to move forward with construction she is faced with the options of (1) selecting a completely different home design with less square footage; (2) tearing down the existing, currently utilized garage; or (3) obtaining a variance from the Portsmouth Zoning Board of Review. Wishing to proceed with the third option, the petitioner asks whether the Code of Ethics prohibits her husband from appearing before the Zoning Board to request a variance from Portsmouth’s lot coverage and property line zoning requirements. 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 her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). She may not use her public position or confidential information received through her 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 herself or any other person before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1). A recent amendment to the Code of Ethics clarifies that the prohibition against 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(a)(3). Furthermore, this amendment also clarifies that section 5(e)’s prohibition includes authorizing or directing another person to appear before a board on one’s behalf. See Regulation 36-14-5016(a)(2). 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 she is the appointing authority. The petitioner wishes for her spouse to represent their joint interests before the Portsmouth Zoning Board of Review, the members of which she appoints in her capacity as a Town Council member. Having determined that section 5(e) prohibits the petitioner's application to the Zoning Board 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 Board with certain restrictions. In considering questions of hardship on a case by case basis, the Commission has focused on the 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 her 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 request in Advisory Opinion 2007-19. There, a member of the Little Compton Town Council sought permission to appear before the Little Compton Zoning and Planning Boards to seek a subdivision variance. He represented that his mother owned a substandard lot that contained two houses. The petitioner and his family had lived in one of the houses for several years. His mother wished to gift that house to the petitioner, and to gift the second house to the petitioner’s siblings. To do so, a subdivision variance was needed to create two substandard lots. In determining that the hardship exception should apply, the Commission relied on the fact that the property had been in the family and was expected to remain so, and that one of the houses had been the petitioner’s personal residence for many years, predating his election to public office. 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. There are many other cases in which the Commission has allowed public officials to appear before their own or subsidiary boards based upon a finding of hardship when it concerned the officials’ residential property. See 2007-42 (Portsmouth Town Council member may appear before Zoning Board for variance on his residence); A.O. 2004-33 (Exeter Town Council member could appear before Planning Board to request special use permit for home-based business on his residential property); 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); 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 petitioner seeks to obtain a variance for property she has owned and used for over twenty years, predating her election to the Town Council, and that is directly adjacent to her residence. She represents that the intended use of the property will be as a residence for her adult son. 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 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 Zoning Board of Review regarding a variance for her residential property, subject to her recusal from Zoning 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 : 2007-19 2007-42 2006-43 2006-34 2004-33 2002-67 99-127 Keywords : Hardship Property Interest