Advisory Opinion No. 2009-18 Rhode Island Ethics Commission Advisory Opinion No. 2009-18 Re: Gary Mataronas QUESTION PRESENTED The Petitioner, a member of the Little Compton Town Council, a municipal elected position, requests an advisory opinion regarding whether he may appear before the Little Compton Zoning and Planning Boards regarding a special use permit for property that he owns. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Little Compton Town Council, a municipal elected position, may appear before the Little Compton Zoning and Planning Boards regarding a special use permit for property he owns, 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 1998. He represents that, in 2000 he inherited property previously owned by his father, located at 152 Sakonnet Point Road, Little Compton, and designated as Lot 324. The Petitioner provides that the property was originally purchased by his grandfather in 1935 and since that time has been continuously held in interest by the Petitioner’s family. He states that his grandfather gave the property to his father in 1941 and that his parents lived in the home on the property until after the Petitioner’s mother passed away (in 1983) and the Petitioner’s father came to live with him in 1992. The Petitioner further states that over the course of the years in which his parents lived in the house they made several additions, modifications, and expansions to it. Additionally, the Petitioner represents that his parents ran a small marine supply store out of the ground floor of their home, which is located within a mixed residential/commercial use zone. He states that the business was run as a summer seasonal business and that the store area was expanded in 1965, with part of the second floor of the building being used for storage of merchandise for the business. The Petitioner states that after his mother passed away in 1983, his father struggled to maintain the premises, which fell into disrepair; subsequently, the Petitioner states that after his father came to live with him in 1992, the property was vandalized by youths in 1998. He further states that since his father’s death in 2000, he has attempted to clean-up the property, which he now describes as being messy, derelict and an “eyesore.” The Petitioner represents that he would now like to seek a special use permit from the Little Compton Zoning Board (“Zoning Board”) in order to be able to take down the current building structure and then rebuild it; he states that in doing so, he is requesting authorization to rebuild with dimensions that will actually reduce the overall “footprint” of that occupied by the current structure. He states that in requesting such special use permit, his intention is that the marine supply store will be reopened some day and, that he wishes to have a family member live in the upstairs floor of the new building, and that he does not intend to sell the property. Given this set of circumstances, the Petitioner requests an advisory opinion as to whether his situation justifies application of the hardship exception found at R.I. Gen. Laws § 36-14-5(e)(1), given that in order to obtain a special use permit, he will likely need to appear before both the Little Compton Planning Board (“Planning Board”) and Zoning Boards, agencies to which the Town Council is the appointing authority. 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). Additionally, 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) and (2). Commission Regulation 36-14-5016 clarifies that the prohibition on representing oneself also includes representing oneself before another agency for which the official is the appointing authority or a member thereof. 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 special use permit 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. While the Commission has not previously considered a fact pattern precisely on point with that presented by this Petitioner, it has considered facts and granted hardship exceptions in circumstances that present somewhat analogous situations. In Advisory Opinion 2004-33, the Commission opined that a member of the Exeter Town Council, who was a licensed mental health counselor, could appear before the Exeter Planning Board to request a special use permit to establish a home-based counseling business on his residential property since the circumstances justified 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, in Advisory Opinion 2001-30, the Commission concluded that a Providence Senior Assistant City Solicitor could appear before the Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to a rental property that he had owned for several years. The Commission’s finding of hardship was based primarily upon two circumstances: (1) Without the approval of the HDC, the Petitioner’s property would fall into disrepair, and (2) the Petitioner planned to establish his private law offices within the first floor of the property. To achieve the latter, the Petitioner had to appear before the Zoning Board to request a change to add a second use as professional. Additionally, the Petitioner indicated that he might convert one of the property’s rental units into his principal residence. See also A.O. 2007-19 (granting a hardship exception to a Little Compton Town Council member to appear before the Zoning and Planning Boards to request a subdivision variance for a substandard lot in order that his mother could gift the house that he currently lived in to he and his wife); A.O. 2007-51 (granting a hardship exception to a Portsmouth Town Council member who sought to obtain a variance for property that she had owned and used for over twenty years, that was directly adjacent to her residence, with the intended use of the subject property being as a residence for her adult son); A.O. 2005-32 (granting a hardship exception to a Westerly Planning Board member to appear before the Planning Board to request a zone change which would allow the Petitioner to relocate his business, an ice cream shop, notwithstanding that his property rights did not pre-exist his appointment to the Planning Board); A.O. 98-97 (granting a hardship exception to a Glocester Planning Board member who sought a variance and special use permit to sell produce from a barn located on the same property as his principal residence). But see A.O. 2000-41(declining to apply a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract to locate a cellular communications tower on his residential property as the proposed commercial venture served only to generate additional income for the Petitioner; the Commission opined that allowing a hardship exception under such circumstances would, in effect, render Section 5(e)(1)’s prohibitions a nullity). In this Petitioner’s set of facts, while his ownership interest in the property accrued in 2000, subsequent to his initial election to the Town Council in 1998, the property was held in interest by his immediate ancestors, initially by his grandfather and then by his parents, since 1935, long prior to his election to office, prior indeed, to his birth. Furthermore, we note that the Petitioner gained his interest in the property by inheritance. Additionally, while the structure currently located on the property is not the Petitioner’s primary residence, the Petitioner states that it is his intent that a family member reside in the structure if rebuilt, and further, that it is his intent that the property interest pass to a family member upon his death. Finally, while the Petitioner avers that one of the purposes of obtaining the special use permit would be to revive the small marine supply business that previously occupied the premises, we note that according to the Petitioner’s representations, such commercial enterprise would be akin to, and consistent with, the previous use to which his parents had made of the space. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may appear before the Little Compton Zoning and Planning Boards regarding a special use permit for his property, subject to his recusal from Zoning and/or Planning Board appointments until the completion of the next election cycle, 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)(1) Commission Regulation 36-14-5016 Related Advisory Opinions : 2007-51 2007-19 2005-32 2004-33 2001-30 2000-41 98-97 Keywords : Hardship Exception