Advisory Opinion No. 2007-55 Advisory Opinion No. 2007-55 Re: George D. McKinnon QUESTION PRESENTED: The petitioner, a member of the Smithfield Zoning Board of Review (“the Zoning Board”), a municipal elected position, requests an advisory opinion as to whether he may appear in a matter in which the Zoning Board will be sitting as the Smithfield Board of Appeals (“Board of Appeals”), as a party in the appeal of a Planning Board decision, which approved a master plan for a subdivision to property which directly abuts the petitioner’s principal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Zoning Board of Review (“the Zoning Board”), a municipal elected position, may appear before the Zoning Board sitting as the Smithfield Board of Appeals (“Board of Appeals”), as a party in the appeal of a Planning Board decision, which approved a master plan for a subdivision to property which directly abuts the petitioner’s principal residence, based on a finding that the unique facts as represented justify application of the public forum exception found at Regulation 36-14-7003, and the hardship exception as provided for in R.I. Gen. Laws § 36-14-5(e)(1). The petitioner represents that he is a member of the five-person Smithfield Zoning Board of Review. He states that the Zoning Board also sits as the Smithfield Board of Appeals in matters in which aggrieved parties are appealing decisions of the Smithfield Planning Board. Recently, the Planning Board approved an application for a master plan submitted by Keegan LLC (“Keegan”). The proposed master plan includes a subdivision of approximately twelve two-acre lots. The petitioner represents that the proposed subdivision directly abuts the property on which the petitioner’s principal residence is located. The petitioner objects to the proposed master plan, and is a party to the appeal of the Planning Board’s decision. The petitioner states affirmatively that he will recuse as a member of the Board of Appeals from participating in the hearings on the matter, but requests an advisory as to whether he is prohibited by the Code of Ethics from appearing as a party appellant before the Board of Appeals. Under the Code of Ethics, the petitioner, as a member of the Board of Appeals, may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his or her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). Here, the petitioner agrees that the proposed subdivision, if approved, will have a financial impact on his property. For that reason, the petitioner already plans to recuse from consideration of the matter. However, notwithstanding his recusal, the petitioner wishes to appear before the Board of Appeals to support his appeal of the Planning Board’s decision. Section 5(e) of the Code 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). 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 himself before a municipal agency, in this instance the Board of Appeals, of which he is a member. Having determined that section 5(e) prohibits the petitioner's representing himself before the Board of Appeals 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 Appeals 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. See A.O. 2007-42. Under a totality of the circumstances analysis, no single factor is determinative. In this instance, the subject of the petitioner’s appeal is property that directly abuts the petitioner’s primary residence. The petitioner has had an interest in that property since 1984, prior to his appointment to the Zoning Board in 1995. The petitioner’s appeal does not involve a commercial venture on his property, but rather, is an appeal as an affected abutting property owner of the Planning Board’s approval of Keegan’s master plan. In previous advisory opinions, the Commission has granted hardship exceptions in situations where vested property interests in a principal residence or office were involved. See e.g., A.O. 2007-42; A.O. 2007-19; A.O. 2003-33. Furthermore, the Code also affords a public official a limited right to address his or her own board under what is generally called the "public forum exception." This exception reads as follows: “No violation of this Chapter or regulations shall result 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. In an analogous advisory opinion, the Commission opined that both the hardship exception and the public forum exception applied to permit a Smithfield Zoning Board member to appear before the Zoning Board to testify regarding a petition to locate a church directly across the street from his residential property. See A.O. 2003-33. Other opinions have produced similar results. See A.O. 2003-15 (determining that a Scituate Town Council member may attend and participate in meetings of the Zoning Board regarding a special use permit application where he is an abutter); A.O. 2002-65 (advising that a member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak provided that he does not receive special access or priority not available to any other member of the public); A.O. 97-85 (opining that the Central Falls City Solicitor may testify as a private citizen at a Central Falls Liquor Board hearing regarding the revocation of a liquor license of a bar located adjacent to the petitioner's private law offices). The circumstances represented by this petitioner are typical of those where application of the hardship exception and the public forum exception are appropriate. The petitioner, although properly recusing from exercising any decision-making, wishes only to appear before the Board of Appeals to appeal a matter that directly affects him, namely a proposed change in the use of property that abuts his own. Here, the matter concerns property adjacent to the petitioner’s primary residence, which was brought before the Planning Board in the first instance through no action of his own. Therefore, consistent with prior advisory opinions, we are of the opinion that the petitioner may address the Board of Appeals regarding the subject subdivision master plan to abutting land as long as he does not receive access or priority not available to any other abutting property owner or member of the public. We further caution the petitioner that he may not in any way use his position to influence members of the Board of Appeals. See R.I. Gen. Laws 36-14-5(d). Code Citations: 36-14-5(a) 36-14-5(d). 36-14-5(e)(1) 36-14-5 (e)(4) 36-14-7(a) Commission Regulation 36-14-7003. Related Advisory Opinions: A.O. 2007-42 A.O. 2007-19 A.O. 2003-33 A.O. 2003-15 A.O. 2002-65 A.O. 2000-9 Keywords: Hardship Exception Recusal