Advisory Opinion No. 2009-7 Rhode Island Ethics Commission Advisory Opinion No. 2009-7 Re: Maxine Cavanagh QUESTION PRESENTED The Petitioner, a member of the Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding what prohibitions the Code of Ethics places on her in matters involving the Smithfield Land Trust’s purchase of a conservation easement on property which is owned by the Petitioner and her husband. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Smithfield Town Council, a municipal elected position, is prohibited from participating in matters coming before the Town Council involving the Smithfield Land Trust’s purchase of a conservation easement on property which is owned by the Petitioner and her husband, but that the Petitioner may represent herself before the Land Trust in her private capacity, based on a finding that the unique circumstances as represented justify application of the hardship exception as provided for in R.I. Gen. Laws § 36-14-5(e)(1). The Petitioner is a member of the Smithfield Town Council (“Town Council”). The Petitioner previously served on the Town Council from November, 2004, to November, 2006, and was recently reelected to serve on the Council, with her new term commencing in December of 2008. She represents that currently, the Smithfield Land Trust (“Land Trust”), a municipal public entity, is seeking Town Council authorization to offer to purchase a conservation easement on property owned by the Petitioner and her husband. She states that the easement would convert the current twelve acre piece of property on which her primary residence exists, a large portion of which has frontage on Stump Pond, into one non-divisible lot such that it would be preserved as open space that could not be subdivided in the future. The Petitioner states that she has owned the property for approximately 30 years. She further represents that the Land Trust first became interested in purchasing a conservation easement on her property in May of 2008. Subsequently, in August of 2008, prior to the Petitioner’s reelection to the Town Council, the Land Trust received authorization from the Town Council to commission an appraisal of the Petitioner’s property and voted in October, 2008, to seek Town Council authorization to attempt to purchase a conservation easement on the Petitioner’s property. On January 6, 2009, the Land Trust came before the Town Council during an executive session meeting of the Town Council to request authorization to purchase the easement from the Petitioner; at this time, the Petitioner recused herself from the proceedings and the Town Council voted to table the matter, pending issuance of an advisory from this Commission. As such, the Petitioner requests an advisory opinion as to what limitations and prohibitions the Code of Ethics places on her, given that the Land Trust wishes to purchase a conservation easement from her while she is serving as a member of the Town Council. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-7001. Section 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, her business associates, or any person within her family. Additionally, pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), the Petitioner may not represent herself or any other “person” before any state or municipal agency of which she is a member or by which she is employed. A “person” is defined as an individual or business entity. R.I. Gen. Laws § 36-14-2(7). Included in the prohibition on representing oneself before one’s own agency while a member and for the first year subsequent to separation from that agency, is a prohibition on representing oneself “before another agency for which he or she is the appointing authority or a member thereof.” Commission Regulation 36-14-5016(a)(3). 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. At the outset, it is clear that the Petitioner must continue to recuse from participation in all discussion and voting, and any other manner of proceeding coming before the Town Council, concerning the Land Trust’s purchase of a conservation easement on her property, given the obvious financial and personal interest involved regarding the Petitioner’s real property. See R.I. Gen. Laws § 36-14-5(a), (d) and 7(a). Furthermore, 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 to negotiate the sale of a conservation easement on her property to the Land Trust, the members of which she appoints in her capacity as a Town Council member; furthermore, in this instance, two of the current Land Trust members were appointed during the Petitioner’s prior 2004-2006 term on the Town Council. Having determined that section 5(e) prohibits the Petitioner from representing herself in this matter before the Land Trust at this time, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to proceed under the exception. 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 her public office or is recently acquired; and finally, whether the relief sought involves a primarily commercial venture. See A.O. 2007-42 (applying a totality of the circumstances analysis to the question of whether a member of the Portsmouth Town Council may appear before the Portsmouth Zoning Board of Review regarding a variance for his residential property and opining that a hardship exception was proper); A.O. 2007-19 (applying a totality of the circumstances analysis to the question of whether a Little Compton Town Council Member could appear before the Little Compton Zoning and Planning Boards regarding a variance for his residential property). Under a totality of the circumstances analysis, no single factor is determinative. Here, the Petitioner’s ownership interest in the subject property long pre-existed her election to the Town Council. Furthermore, as noted, the purpose for which relief is sought is in order to enable the sale of a conservation easement to the Land Trust, so that the majority of the land will be preserved as open space and remain as one lot, rather than being subdivided. Thus, while the Petitioner stands to financially benefit from the proposed transaction, the end result will benefit the members of the public within the municipality and the property will not be used for any commercial venture. See A.O. 2006-43 (declining to grant a hardship exception to a member of the Barrington Planning Board for him to seek Planning Board approval for a Comprehensive Permit to construct a housing development in which 25% of the units would be deemed affordable housing). Additionally, it should be noted that the Land Trust commenced its inquiries and initiation of this process prior to the Petitioner’s reelection to the Town Council; indeed, the Petitioner represented to Commission staff that it had been her earnest hope that the entirety of the matter would have been decided one way or another and the transaction completed prior to the most recent election in November of 2008. 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 Land Trust until after the election cycle following the resolution of the Petitioner’s variance application. See A.O. 2007-42 (opining that in order to lessen any appearance of impropriety, a Portsmouth Town Council member should 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 Land Trust regarding this matter, subject to her recusal from Land Trust 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 : § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Commission Regulation 36-14-5016 Commission Regulation 36-14-7001 Related Advisory Opinions : A.O. 2007-42 A.O. 2007-19 A.O. 2006-43 Keywords : Hardship Exception Recusal