Advisory Opinion No. 2010-32 Rhode Island Ethics Commission Advisory Opinion No. 2010-32 Re: David E. Rizzolo QUESTION PRESENTED The Petitioner, a member of the Zoning Board of Review for the Town of Barrington, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Zoning Board regarding a variance for certain property he intends to purchase for his personal residence. 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 Barrington, a municipal appointed position, may appear before the Zoning Board regarding a variance for certain property he intends to purchase for his personal residence 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 (“Zoning Board”) for the Town of Barrington (“Town”) since 2009. The Petitioner advises that he and his wife have entered into a purchase and sales agreement for property (“property”), which is located in the same neighborhood where they have lived for over nine (9) years. The Petitioner represents that the property has a structurally compromised house located on it and was marketed at land value because of the uninhabitable condition of the house. The Petitioner advises that he and his wife intend to construct a new home on the property for their growing family but, because it is a legal non-conforming lot, he must apply for a variance from the Zoning Board. The Petitioner informs that David Andreozzi of Andreozzi Architects will be representing his interests before the Zoning Board. In a subsequent conversation with Ethics Commission staff, the Petitioner further informed that he and his wife have been looking for residential property in the Town for over one (1) year and have been unsuccessful in their search. He stated that the property is ideal for his family since it is located in the same neighborhood where they have lived for over nine (9) years and that the location will enable his children to attend the Nayatt Elementary School. 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). The Code of Ethics clarifies that the prohibition on representing oneself also includes authorizing or directing another person to participate in the presentation of evidence or arguments for the purpose of influencing the judgment of one's own agency. See Commission Regulation 36-14-5016. 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 (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 one is a member. The Petitioner wishes to obtain Zoning Board approval for a variance while he is serving on the Zoning Board. Although the Petitioner asserts that he will authorize an architect to represent his interests rather than personally appear before the Zoning Board, the Commission's regulations clearly set forth that such an arrangement falls within section 5(e)'s prohibitions, absent a finding of hardship. See Commission Regulation 36-14-5016. 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 justify a finding of hardship to permit the Petitioner to proceed before the Zoning Board. 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 98-113. In that opinion, the Commission considered whether a member of the Narragansett Zoning Board of Review could seek relief from the Zoning Board for property he was purchasing as his principal residence and appear personally or through counsel before the Zoning Board regarding his request based on a hardship exception. The Commission opined that, ordinarily, it had granted such hardship exceptions in the past only when a matter involved the “vested property rights” of an official. As interpreted by the Commission, vested property rights included pre-existing ownership interests in real property that were: a) the official’s principal residence, or b) the official’s place of business. In Advisory Opinion 98-113, however, the Commission determined that the property at issue was being purchased as the principal residence of the Petitioner and, while the Petitioner’s interest in the property was not pre-existing to his appointment to office, it involved an otherwise regular purchase of property for use as a principal residence and, thus, a hardship exception under section 5(e) was warranted. See also A.O. 2000-50 (opining that the Assistant Town Solicitor for the Town of Lincoln could file an application with the Town’s Zoning Board, within one year from the date of his severance as legal counsel to the Zoning Board, regarding property on which he intended to construct a home, notwithstanding that his interest in the property did not pre-exist his appointment as legal counsel to the Zoning Board, since it involved an otherwise regular purchase of property for use as a principal residence). Accordingly, based upon past advisory opinions and the fact that the property will be used for the Petitioner’s principal residence, the Commission concludes that it would be a hardship for the Petitioner if he were not permitted to seek relief in order to build his house. 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 variance for certain property he intends to purchase for his principal residence 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 Commission Regulation 36-14-5016 Related Advisory Opinions 2000-50 98-113 Keywords Hardship Exception Property Interest