Advisory Opinion No. 95-110

Re: Michael P. Kehew

A. QUESTION PRESENTED

Whether Petitioner Michael Kehew, a member of the Middletown Town Council, may appear before the Middletown Zoning Board given that the members of the Zoning Board are appointed by the Town Council.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that Petitioner Micheal Kehew will not violate the Code of Ethics by appearing before the Middletown Zoning Board provided that the purpose of his appearance involves the protection of his vested property rights. The decision is based on the Commission's finding that, notwithstanding the general prohibition set out in R.I. Gen. Laws § 36-14-5 (e) against an official representing himself before an agency of which he is a member or by which he is employed, that prohibition does not extend to appearances that involve the protection of vested personal property rights. The Commission has held that the protection of such rights falls within the hardship exceptions contemplated by subsection 5 (e).

C. DISCUSSION

1. Facts

The Petitioner is a member of the Middletown Town Council. He and his father own property in Middletown upon which a restaurant is located. The Petitioner and his father wish to apply to the Zoning Board for a special exception permitting the addition of a drive up window to the restaurant. The Middletown Town Council appoints the Zoning Board members by majority vote.

2. Analysis

At issue in this advisory is whether an individual may appear before a board whose members he appoints. The Code of Ethics does not address this situation directly. However, R.I. Gen. Laws § 36-14-5 (e) speaks to the issue of an individual appearing before his or her own board and has been held to extend to situations such as the Petitioner's. In Advisory Opinions Nos. 89-50, 89-52 and 94-19 the Commission held that for purposes of applying R.I. Gen. Laws § 36-14-5 (e), an individual appearing before a board, the members of which he or she appoints, is analogous to appearing before one's own board. Consistent with earlier opinions, the Commission finds that R.I. Gen. Laws § 36-14-5 (e) is applicable in this instance.

R.I. Gen. Laws § 36-14-5 (e) generally states that absent a case of hardship, an individual may not represent himself or herself before his or her own board. In this case, the Petitioner wishes to appear before the Middletown Zoning Board regarding his own property. Specifically, the Petitioner wishes to pursue an application with the Board for a special exemption permitting the addition o a drive-up window at a restaurant in which he and his father have an ownership interest. In Advisory Opinions Nos. 89-50, 89-52, 89-71 and 94-38, the Commission held that protecting vested personal property rights constitutes a hardship warranting an exception to the general rule set forth in R.I. Gen. Laws § 36-14-5 (e). The Petitioner's interest in the restaurant properly constitutes such a personal property right.

In conclusion, the Petitioner, Micheal Kehew, a member of Middletown Town Council, may appear before the Middletown Zoning Board, whose members are appointed by the Town Council, in order to protect his vested personal property rights.

Keywords

Property Interest

Appointing Authority