Advisory Opinion No. 98-97

Re: George G. Charette

QUESTION PRESENTED

The Petitioner, a Glocester Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Planning Board to present a petition for variance and special use permit application regarding the sale of produce and other items from a barn located on his property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Glocester Planning Board member, a municipal appointed position, may appear before the Planning Board regarding variance and special use permit requests relating to the use of his barn based on a finding of hardship by the Commission pursuant to R.I. Gen Laws § 36-14-5(e).

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.”

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. The circumstances here fall within that exception. The property at issue is the Petitioner's principal residence and includes a house, a barn, and a garage. Additionally, the Petitioner and his wife have sold produce at the roadside over the last two years since the Petitioner's wife lost her job from Almacs. In effect, the property is both the Petitioner’s principal residence and his principal place of business. As the property is currently zoned for agricultural/residential use, a variance and special use permit are necessary to allow the Petitioner and his wife to sell produce and other items from the barn. Therefore, the Commission concludes that the Petitioner may bring before the Planning Board this request for variance based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e).

Code Citations:

36-14-5(a)

36-14-5(e)

Related Case Law:

Thomas DiLuglio v. RIEC, C.A. 85-4556 (Slip

Opinion, February 14, 1996)

Related Advisory Opinions:

GCA 11

97-146

94-38

94-19

92-68

89-71

Keywords:

Hardship exception

Business interest

Property interest