Advisory Opinion No. 98-105

Re: Michael Lapisky

QUESTION PRESENTED

The Narragansett Town Solicitor requests an advisory opinion on behalf of the Petitioner, the Narragansett Zoning Board of Review Chairman, a municipal appointed position, as to whether he and his spouse may appear before the Zoning Board regarding a variance and special use permit for residential property that they acquired prior to his appointment to the Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Narragansett Zoning Board of Review Chairman, a municipal appointed position, and his spouse may appear before the Zoning Board, personally or through counsel, regarding a variance and special use permit for their property under the hardship exception to Section 5(e) of the Code of Ethics based upon the fact that their request for relief relates to residential property acquired prior to his appointment to the Board.

The Petitioner, Chairman of the Narragansett Zoning Board of Review, and his spouse have petitioned the Zoning Board for a variance and special use permit in order to construct a deck and shed on their property. He advises that the subject property is their residence and was acquired prior to his becoming a member of the Board. 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. In previous advisory opinions, the Commission has granted hardship exceptions 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; A.O. 98-97; GCA 11.

As in previous situations where the Commission has found hardship to exist, the property interest at issue here involves the Petitioner’s principal residence, which was acquired prior to his appointment to the Board. Therefore, the Commission finds that the circumstances involving this property fall within the vested property exception to Section 5(e). The Petitioner and his spouse may appear before the Zoning Board, either personally or through counsel, regarding a request for a variance and special use permit to construct a deck and a shed on their property based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e). The Petitioner must recuse from participation and vote in the Board’s consideration of their request. Additionally, he is required to file notice of recusal with both the Zoning Board and the Ethics Commission under Section 6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(e)(1)

36-14-6

Related Advisory Opinions:

98-97

98-94

98-12

97-146

94-38

94-19

92-68

89-71

GAC 11

Keywords:

Hardship exception

Property interest