Advisory Opinion No. 96-84

Re: Thomas A. Todd

A. QUESTION PRESENTED

The Petitioner, a former Jamestown Planning Board member, a former municipal appointed official requests an advisory opinion as to whether he may appear as a witness before the Jamestown Planning Board and Jamestown Zoning Board less than one year after his resignation.

B. SUMMARY

Based on the Petitioner's representations, provisions of the Code, and previous advisory opinions, we conclude that the Code of Ethics prohibits the Petitioner, a municipal appointed official from appearing before the Planning Board until October 23, 1996 - one year from the Petitioner's official severance from the Planning Board. Additionally, although the Petitioner would not be prohibited from appearing before the Zoning Board, any joint meeting of the Zoning Board and the Planning Board raises the same prohibitions set out in the Code since the Petitioner would still be appearing before the Planning Board.

C. DISCUSSION

1. Facts

The Petitioner was a member of the Jamestown Planning Board until October 23, 1995, when he resigned his position. After resigning, he was approached to design a building on the Jamestown waterfront. The Petitioner performed the design work. The owner then sought a set-back requirement variance. Three hearings were held before both the Jamestown Planning Board and Zoning Board where the Petitioner testified. The Petitioner advises that there are additional hearings pending where he is being called upon to testify.

The Petitioner advises that he does not have any financial interest in the project other than his fees for architectural services rendered on the project.

The Jamestown Zoning Board and the Jamestown Planning Board now meet jointly pursuant to ordinance.

The Petitioner requests an advisory opinion as to whether he may appear at the hearings of these Boards on this project and whether a waiver of the one year can be granted given these circumstances.

2. Analysis

The Commission provides advisory opinions only as to future conduct and as such we cannot now provide any judgment as to the Petitioner's past conduct. However, we will consider whether the Petitioner can now appear before the Jamestown Planning Board less than one year before his resignation. Petitioner requests a waiver of the one year requirement if necessary.

The Code of Ethics provides that the Petitioner shall not represent any other person before his Board. R.I. Gen. Laws § 36-14-5(e)(2). Additionally, R.I. Gen. Laws § 36-14-5(e)(3) prohibits the Petitioner from appearing as an expert witness before his or her Board with respect to any matter the agency's disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to himself, or any person within his family or any business associate of the person or any business by which the person is employed or which the person represents. R.I. Gen. Laws § 36-14-5(e)(4) extends the prohibitions of R.I. Gen. Laws § 36-14-5(e) to one year after the Petitioner has officially severed his position with his Board.

The Commission has previously concluded that public officials cannot appear before their own agency or Board before the expiration of one year from the termination. In A.O. 96-11, the Commission concluded that a former Senior Budget Analyst may not represent himself, any other person or entity, or act as an expert witness before the State Budget Office for a period of one year after having officially severed his position with that office. See also A.O. 90-83 (concluding that an associate attorney of a law firm which served as Little Compton Solicitor could not represent clients before Little Compton boards and agencies until one year after the termination of the firm's services as Solicitor); A.O. 89-03 (concluding a violation would arise if the Portsmouth Town Solicitor represents any individuals before Portsmouth Town boards represented by the office of the Town Solicitor within one year after his termination); A.O. 94-13 (concluding former Deputy Legal Counsel for the Secretary of States Office may not represent private clients before that agency until the expiration of one year of his departure from the agency due to the fact that he voluntarily terminated his employment with said agency); A.O. 94-06 (concluding that a violation will result if a former Newport City Councilor were to appear before the Council as the Executive Director of the Newport Chamber of Commerce for a period of one year after the date of his termination from the city council); A.O. 90-32 (concluding that Lincoln Zoning Board of Review member could not represent clients before the Zoning Board of Review, the Planning Board, or the Town Council before expiration of one year from severing his position with the Board).

In contrast, the Commission has found that a former Legal Counsel for the Rhode Island Department of Environmental Management would not be in violation of the Code were he to appear before that agency within one year of leaving state service given the particular circumstances of his brief tenure at and termination from that agency. In that case, given that the legal counsel had only been employed at DEM for six months, essentially a probationary period, and had been fired, the Commission found that the intent of the statute did not apply to those particular circumstances since that official could not likely influence members of his former agency. A.O. 95-58. However, the current matter is unlike that circumstance since the Petitioner has both served for an extended period and left the position voluntarily.

Additionally, it should be noted that a hardship exception only exists under R.I. Gen. Laws § 36-14-5(e)(1), for representing yourself before your own Board or Agency (such as proceedings affecting your own property), and is not provided under R.I. Gen. Laws § 36-14-5(e)(2), (e)(3), or (e)(4). See A.O. 92-44 (concluding that former Board of Examiners in Dentistry member may not represent a dentist before the Board before the expiration of one year even though he had a long standing relationship with the client and was representing the client on similar matters in Court given that no exception for hardship is provided under 36-14-e(2)). Here, although the Petitioner's client may experience a hardship in not having the Petitioner testify to his plans in obtaining a setback variance and since he has previously testified, no exception is provided in the Code.

These prohibitions do not apply to the Petitioner appearing before the Jamestown Zoning Board since he was not a member of that Board nor was he appointed by the Zoning Board to his position on the Planning Board. See A.O. 87-02E (concluding that a member of the Smithfield Planning Board must recuse when his company appears before the Planning Board, but no violation would arise by virtue of the company appearing before other municipal agencies).

Based on the Petitioner's representations, provisions of the Code, and previous advisory opinions, we conclude that the Code of Ethics prohibits the Petitioner from appearing before the Planning Board until October 23, 1996 - one year from the Petitioner's official severance from the Planning Board. Additionally, although the Petitioner would not be prohibited from appearing before the Jamestown Zoning Board, any joint meeting of the Jamestown Zoning Board and the Planning Board raises the same prohibitions set out in the Code since the Petitioner would still be appearing before the Planning Board.

Code Citations:

36-14-5(e)(1)

36-14-5(e)(2)

36-14-5(e)(3)

36-14-5(e)(4)

Related Advisory Opinions:

96-11

95-58

94-13

94-06

92-4

90-83

90-32

89-03

87-02E

Keywords:

hardship exception

revolving door