Advisory Opinion No. 98-113

Re: Franklin J. Walason


The Narragansett Town Solicitor requests an advisory opinion on behalf of the Petitioner, a Narragansett Zoning Board of Review member, a municipal appointed position, as to whether he may seek relief regarding certain property he intends to purchase for his personal residence given that the Zoning Board of Review must take action on the request.


It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Narragansett Zoning Board of Review (Zoning Board) member, a municipal appointed position, may seek relief for property he is purchasing as his principal residence from the Zoning Board and may appear personally or through counsel before the Zoning Board regarding this request 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. 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.

Here the property at issue is being purchased as the principal residence of the Petitioner. While the Petitioner’s interest in the property is not pre-existing, it involves an otherwise regular purchase of property for use as a principal residence. In such circumstances the Commission finds that a hardship exception under Section 5(e) is warranted. The Commission therefore concludes that the Petitioner may seek relief before the Zoning Board pursuant to R.I. Gen Laws § 36-14-5(e).


1. Facts

The Petitioner is a voting member of the Narragansett Zoning Board of Review. He is in the process of purchasing a vacant lot where he intends to build and move to a new residence. The lot is close to certain environmental features and thereby requires the Petitioner to obtain relief from the Zoning Board in order to proceed with their project. It is anticipated that the Planning Department staff will be able to make the recommendation based on certain standard criteria. However, the Planning Board and Zoning Board still must approve it. The Zoning Board could, instead of approving the request for relief, order a full public hearing on the matter.

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 property he and his spouse wish to purchase 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.

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. (A definition for “hardship” is not 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 the Petitioner 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., Advisory Opinion 89-71; Advisory Opinion 94-38; General Commission Advisory Opinion 11 (1991). The situation here is different. The property is in the process of being purchased. It is not a vested property interest. As such, the Petitioner’s interest in the property does not fall within the categories of exceptions to Section 5(e) previously recognized by this Commission. However, given that this will be the Petitioner's principal residence, the Commission concludes that it would be a hardship for the Petitioner not to seek relief in order to build his house. This situation is different from a Zoning Board member or other member who must repeatedly appear before his or her own board for business or commercial reasons. Nor do we expect that appearances for one's principal residence would be regular or frequent.

Therefore, the Petitioner may seek relief through the Zoning Board relating to property that he is purchasing as his principal residence. We find this matter to be a hardship warranting an exception to Section 5(e) of the Code. However, the Petitioner must recuse himself from participation as a Zoning Board member on matters relating to this property. The statement of conflict of interest must be filed with the Zoning Board and with the Ethics 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