Advisory Opinion No. 2010-9 Rhode Island Ethics Commission Advisory Opinion No. 2010-9 Re: Paul R. McAdam QUESTION PRESENTED The Petitioner, a member of the Zoning Board of Review for the Town of Exeter, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Zoning Board of Review regarding a dimensional variance for his residential property. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Zoning Board of Review for the Town of Exeter, a municipal appointed position, may appear before the Zoning Board of Review regarding a dimensional 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 Zoning Board of Review (“ZBR”) for the Town of Exeter (“Town”) since 2007. The Petitioner represents that for twenty-five (25) years he served as a zoning enforcement official for Fairfax County, Virginia, retiring in 2004. The Petitioner represents that upon retiring from that position, he and his spouse returned to Rhode Island and purchased their residence in Exeter, Rhode Island on November 10, 2004. The Petitioner states that he wishes to erect a fifteen (15) foot above-ground swimming pool on his property, but to do so he will have to appear before the ZBR for a dimensional variance. The Petitioner represents that the swimming pool will be used solely for the enjoyment of his family members and that it will not be used for monetary or commercial purposes. Given these facts, 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). 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). 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 of which he is a member. Having determined that section 5(e) prohibits the Petitioner's application to the ZBR at this time, the Commission next considers whether the unique circumstances represented justify a finding of hardship to permit the Petitioner to proceed before the ZBR. 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 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 2002-67. In that opinion, the Commission considered whether the Chair of the Charlestown Zoning Board of Review and his spouse could appear before the Zoning Board of Review regarding a dimensional variance application for their residential property for remodeling purposes based upon a finding that the situation constituted a hardship exception to relevant revolving door prohibitions. See also A.O. 99-127 (opining that a Town of Narragansett Zoning Board member could appear before the Zoning Board to seek approval for certain variances in order to build a single family dwelling on property that 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 that the Petitioner seeks a dimensional variance for involves his principal residence, which he purchased in November of 2004 and owned prior to his appointment to the ZBR in 2007. Moreover, the installation of the swimming pool would not be used for monetary or commercial gain but rather for his family’s enjoyment. The Commission is of the opinion that the totality of these particular circumstances do justify making an exception to section 5(e)'s prohibitions. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may appear before the Zoning Board of Review regarding a dimensional variance for his residential property for the purpose of erecting a swimming pool on his property, 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). The Petitioner is required to recuse in accordance with R.I. Gen. Laws § 36-14-6. Code Citations 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) Related Advisory Opinions 2002-67 99-127 Keywords Hardship Exception Property Interest