Advisory Opinion No. 97-146

Re: Joseph Moretti


Whether Joseph Moretti, a member of the North Kingstown Zoning Board of Review, a municipal appointed position, may appear before that Board, personally or through counsel, to seek approval for certain variances relating to a residential subdivision in North Kingstown for which he is the developer.


Section 36-14-5(e) of the Code of Ethics prohibits a public official or employee from “representing him or herself” before an agency of which he or she is a member. In cases of hardship the Ethics Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardships exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were a) the official’s or employee’s principal residence, or b) the official’s or employee’s place of business. Absent some extraordinary circumstances, the hardship exception has not, and should not, be extended to property interests acquired as part of a business venture.

Therefore, the Petitioner may not appear before the North Kingstown Zoning Board of Review. Also, since there is no substantive difference between appearing in person or through a representative or counsel, the requests for zoning variances may not be presented to that Board by the Petitioner through a representative or counsel.


1. Facts

The Petitioner is a voting member of the Zoning Board of Review of the Town of North Kingstown. He received appointment to that position in 1985 and reappointment to subsequent terms. The Petitioner’s private employment is in the building and real estate industries. He is the owner and president of Exeter Realty, Inc. and Moretti Homes, Ltd. Through his businesses, the Petitioner is in the process of developing a small subdivision in North Kingstown. The subdivision received preliminary approval from the Town’s Planning Commission. In order to go forward, however, the subdivision requires certain zoning variances. Those matters fall within the jurisdiction of the Zoning Board of Review.

2. Analysis

Section 36-14-5(e)(1) of the Code of Ethics provides that “[n]o person subject to the Code of Ethics shall represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed.” The prohibition extends for a period of one year after an official or employee leaves public office or employment. The only exceptions to this strict prohibition are those allowed by this Commission “[i]n cases of hardship.”

The Petitioner’s request falls squarely within the parameters of Section 5(e)(1). He is a member of the Zoning Board. The matters relating to the subdivision he is developing fall within the jurisdiction of the Zoning Board. The language of the prohibition enacted by the General Assembly clearly prohibits the Petitioner from appearing before the Zoning Board to seek any variances. Nor may he avoid the restrictions of Section 5(e)(1) by enlisting a representative and/or counsel to appear before the Board on his behalf. Substantively, there is no difference between a personal appearance by a public official or employee and an appearance by a representative or counsel on his or her behalf. (In Advisory Opinion 94-19 the Commission allowed a member of the Cranston City Council to present a matter to the City’s Zoning Board through counsel, even though the Code prohibited a personal appearance by the Council member. That opinion dealt with Commission Regulation 5008, however, not the more restrictive Section 5(e)(1). In addition, the reasoning underlying allowing an appearance by counsel, as set forth in Advisory Opinion 94-19, is flawed. Substantively and practically there is no distinction between an appearance in person and an appearance through a representative and/or counsel.)

Section 5(e)(1)’s prohibitions are more strict than virtually any other provisions in the Code of Ethics. 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. For example, Advisory Opinion 92-68 involved potential conflicts of interest under Sections 5(a) and (d) of the Code of Ethics. The Commission advised a member of the Coventry Planning Commission that he could avoid a potential conflict of interest by recusing from participation and votes relating to a development project with which his employer was involved. Not so with Section 5(e)(1), however. Absent an express finding by this Commission that a hardship exists, the prohibitions in that section are absolute. In other words, recusal is not an option unless the Commission determines that it is justified by a hardship. (No definition for “hardship” is found in the statute, nor has the Commission promulgated a definition. In considering questions of hardship on a case by case basis the Commission has focused on factors such as whether the matter to come before an agency involved a vested property right, whether the matter involved pre-existing or recently acquired property rights or employment, and whether the matter involved a significant economic impact.)

As discussed below, it is recommended that the circumstances here do not justify a finding of hardship. Unlike previous situations in which the Commission has found hardships to exist, the property interests at issue with this Petitioner do not involve his principal residence or place of business. Rather, they relate to a private business venture. Allowing a hardship exception in circumstances such as this would, in effect, render Section 5(e)(1)’s prohibitions a nullity.

The breadth of Section 5(e)(1) was underscored recently in a Superior Court decision upholding a finding of violation by this Commission. In Thomas DiLuglio v. Rhode Island Ethics Commission, C.A. 85-4556 (Slip opinion, February 14, 1996), the Court affirmed a finding by the Commission that a former State Senator had violated Section 5(e)(1) by lobbying his former colleagues within a year after he left the General Assembly. The former State Senator could not avoid liability under the statute by claiming that his lobbying efforts related to his livelihood as a lobbyist; nor should the Petitioner here avoid the prohibitions of the statute because the development project is part of his private employment.

In previous advisory opinions the Commission has found hardship exceptions to Section 5(e)(1) in situations where vested property interests were involved. See, e.g., Advisory Opinion 89-71; Advisory Opinion 94-38; General Commission Advisory Opinion 11 (1991). In those instances where a hardship has been found, however, the vested property interest was a principal residence or office. The situation here is much different. The property interest relates to a private business. Were the Commission to find a hardship under these circumstances it would mean that Section 5(e)(1)’s restrictions did not attach to situations where a public official’s or employee’s private employment interests were at issue. An exception that broad would swallow the rule.

Therefore, as a member of the Zoning Board of Review, the Petitioner may not bring before that Board requests for zoning variances that relate to a private business venture; i.e., the development of a residential subdivision in the Town. Also, as referenced above, the prohibitions in Section 5(e)(1) would not end were the Petitioner to resign his position on the Zoning Board of Review. Again, as enacted by the General Assembly, the prohibitions extend for one year after such resignation, although the arguments in favor of finding a hardship exception might be more compelling were the Petitioner to sever his relationship with the Zoning Board. By serving on the Zoning Board of Review in North Kingstown, while at the same time pursuing a development project in that Town, the Petitioner has placed himself between a rock and a hard place. Those decisions by the Petitioner do not warrant a finding of hardship by this Commission.

Code Citations:


Related Case Law:

Thomas DiLuglio v. RIEC, C.A. 85-4556 (Slip opinion, February 14, 1996)

Related Advisory Opinions:

GCA 11


Hardship exception
Business interest
Property interest