Advisory Opinion No. 2010-52 Rhode Island Ethics Commission Advisory Opinion No. 2010-52 Re: Lewis E. Johnson QUESTION PRESENTED The Petitioner, a former member of the Charlestown Planning Commission, a municipal elected position, requests an advisory opinion regarding whether he is permitted to appear before the Planning Commission within a year from the expiration of his term of office in order to comment upon an abutting property owner's application to modify an existing Site Plan. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Charlestown Planning Commission, a municipal elected position, is permitted to appear before the Planning Commission within a year from the expiration of his term of office in order to comment upon an abutting property owner's application to modify an existing Site Plan. The Petitioner was elected to the Charlestown Planning Commission in November 2004, for a six year term that expires upon the certification of election results in November 2010. The Petitioner did not seek reelection. The Petitioner states that he resides in a Traditional Village District which is zoned for mixed use. He represents that a commercial property which abuts his residence has been under review by the Charlestown Building Official for exceeding the existing Site Plan as to paving, exterior lighting, propane tanks and signage. The Petitioner states that he has an interest in the exterior lighting issue, which involves unshielded outdoor lighting that creates a glare and causes a nuisance at the Petitioner's property. The Petitioner informs that any Site Plan review will occur before the Planning Commission, at a hearing held in open session and with an opportunity for public comment. The Petitioner wishes to appear before the Planning Commission, when it takes up the matter, to make the Commission aware of the impact of the unshielded lighting upon his residence and to participate in a discussion of possible remedies. He states that he has no desire to address any of the other issues that the Building Official has raised relative to the neighboring property. Finally, he notes that recusal will not be necessary because any such hearing will occur after he is replaced as a member of the Planning Commission. Under the Code of Ethics, a public official may not represent himself before the agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1). This prohibition applies not only while the public official is an active member or employee of the agency, but continues in effect for a period of one (1) year after he has officially severed his position with the agency. Section 36-14-5(e)(4). Accordingly, a Planning Commission member is generally prohibited from representing himself in a matter pending before the Planning Commission, while a member and for one year thereafter. However, Commission Regulation 7003, sometimes called the “public forum exception,” provides that a public official may publicly express his own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his spouse or dependent child. Regulation 36-14-7003. Here, the Petitioner wishes to appear before the Planning Commission at an open meeting to provide comment regarding a Site Plan review for property that directly abuts his personal residence. The Petitioner states that the issue concerning his neighbor's unshielded exterior lighting will have a direct and continuing impact upon his property and that he needs to participate in order to protect his property rights. In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2006-37 (member of Smithfield Town Council may, upon recusing from participation as a member of the Town Council, provide public comment as an abutter regarding a zone change petition filed on behalf of a limited liability company which proposes to construct condominiums on the subject property); A.O. 2005-16 (member of the Narragansett Town Council may, upon recusal, attend and provide public comment at meetings of the Town Council regarding a change of zone request where he is an abutter); A.O. 2003-15 (member of the Scituate Town Council may, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he is an abutter provided that he does not receive special access or priority not available to any other member of the public); A.O. 2002-65 (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). Consistent with these prior opinions, and pursuant to the public forum exception found at Regulation 36-14-7003, it is the opinion of the Ethics Commission that the Petitioner may address the Planning Commission during its Site Plan review concerning the property abutting the his residence, as long as the Petitioner does not receive access or priority not available to any member of the public. We further caution the Petitioner that he may not in any way use any confidential information he received through his prior position on the Planning Commission to obtain financial gain for himself or his family. Section 36-14-5(d). Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) 36-14-7003 Related Advisory Opinions: 2006-37 2005-16 2003-15 2002-65 2002-20 Keywords: Public Forum Exception Property Interest