Advisory Opinion No. 98-94

Re: Dorothy Backman


The Petitioner, a former Portsmouth Zoning Board of Review member, a municipal appointed position, may appear before that Board, personally or through counsel, to seek approval for certain variances relating to property she and her husband own through a corporation, part of which she inherited in 1981, with the remainder purchased in 1992.


It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Portsmouth Zoning Board of Review (Zoning Board) member, a municipal appointed position, may appear personally or through counsel before the Zoning Board to seek approval for a variance on property inherited by her prior to serving on the Board based on a hardship exception. 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 and for one year following his or her official severance from the agency. In cases of hardship the Ethics Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardship 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. The hardship exception has not been extended to other types of property interests.

Here, the Petitioner has resigned her position with the Zoning Board effective May 26, 1998. Additionally, the property at issue was her family’s homestead which she inherited in part and purchased in part prior to becoming a member of the Zoning Board. More recently, title to the property was transferred to Arrow Realty where the Petitioner is one of two shareholders. Based on these factors the Commission finds that the circumstances involving this property fall within the vested property exception to Section 5(e). The Commission therefore concludes that the Petitioner may bring this request for zoning variance before the Zoning Board pursuant to R.I. Gen Laws § 36-14-5(e).


1. Facts

The Petitioner is a voting member of the Zoning Board of Review of the Town of Portsmouth. She received appointment to that position in 1993 and reappointment to a subsequent term that expires in March, 2001. She has also submitted a letter of resignation which will be acted upon by the Town Council at its next meeting on May 26, 1998. The Petitioner’s private employment involves owning and leasing residential and commercial real estate properties. She and her husband have ownership and/or management positions in Morris & Backman Properties, Arrow Realty Inc., Bluebill Inc., and M & B Realty Inc. Through these businesses she and her husband lease properties owned by them individually, jointly and through their interests in corporate entities. Most of the rental properties are located in Portsmouth.

In 1981 the Petitioner inherited partial interest in property that had been her parents’ home. Siblings of hers inherited the remaining interests in the property. In 1992 she and her husband purchased the property interests of her siblings and consolidated ownership of the property in a corporation, Arrow Realty Inc., that is wholly owned by the two of them. She and her husband now seek to sell the property. As described by the Petitioner, the property is a legal non-conforming use that has two individual single family residences on one lot. She and her husband have been advised by their realtor that the property would be more marketable as two separate parcels. The property currently is marketed by them as rental property but if sold separately would allow an owner occupant to live in each residence. A petition requesting variances for the property clearing the way for it to be sold as separate residences falls 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). She will be a member of the Zoning Board of Review until May 26, 1998. The matters relating to the property she and her husband wish to sell 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 she avoid the restrictions of Section 5(e)(1) by enlisting a representative and/or counsel to appear before the Board on her 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 stricter 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.)

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 a recent holding, Advisory Opinion 97-146, the Commission advised a member of the Zoning Board in North Kingstown that he could not present a petition for a variance to that board. The petition at issue involved a proposed commercial development in which the board member had an interest. The Commission advised him that he should not appear before the board while he was a member and for the one year period after he left the board. In that matter, the Petitioner argued that not being allowed to present the matter to the Zoning Board would visit a hardship on him because of the costs associated with abandoning or delaying his project. The Commission determined that the economic hardship of a delayed business opportunity was not sufficient to warrant an exception to the clear legislative intent of Section 5(e)’s prohibitions.

In previous advisory opinions the Commission has found hardship exceptions to Section 5(e)(1) only in situations where vested property interests in a principal residence or office were involved. See, e.g., A.O. 89-71; A.O. 94-38; GCA 11. This situation is similar. Although the Petitioner is not currently living at the subject property, she was raised in it and inherited it from her parents. Although the property has been consolidated and held by the Petitioner and her husband as rental property since that time, it was not purchased or contemplated as part of a commercial enterprise. Her appointment to the Zoning Board followed the acquisition of the property. Additionally, the Petitioner represents that the variance request is needed to sell the property. Therefore, the Commission concludes that the Petitioner may bring before the Zoning Board this request for zoning variance based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e).

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