Advisory Opinion No. 2020-19 RHODE ISLAND ETHICS COMMISSION Advisory Opinion No. 2020-19 Approved: April 7, 2020 Re: Robert Najarian QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before one’s own board, for purposes of objecting to an appeal before the Zoning Board filed by the owner of property that abuts the Petitioner’s personal residential property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Zoning Board of Review, a municipal appointed position, may appear before the Zoning Board to object to an appeal filed by the owner of property that abuts the Petitioner’s personal residential property, based upon a finding that the unique facts as represented justify the application of the hardship exception as provided in R.I. Gen. Laws § 36-14-5(e)(1) and the public forum exception as provided in Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003). The Petitioner, who was appointed by the North Smithfield Town Council to a five-year term on the North Smithfield Zoning Board of Review (“Zoning Board”) in January of 2017, represents that he resides in the Town of North Smithfield (“Town”) in a home that he and his wife purchased more than 13 years ago. He further represents that the owner of property located on the same street on which the Petitioner lives has been cited by the Town Zoning Inspector for a violation related to a composting business operated on the property which generates an oppressive odor that has blanketed the entire neighborhood since approximately October of 2019. The Petitioner, who states that he has, on several occasions, notified various Town officials about the odor since it started, explains that the odor emanating from the composting business operation has a direct and negative impact on his and his wife’s quality of life and, potentially, the value of their property. The owner of the subject property (“neighbor”) has sought appellate review of the violation before the Zoning Board. The Petitioner acknowledges that, as a member of the Zoning Board who is an abutter to property that is the subject of a pending appeal, he must recuse from participation in the discussions and decision-making regarding the matter, and that he is prepared to do so. He seeks permission, however, to object to his neighbor’s appeal before the Zoning Board and, potentially, to an application by his neighbor at a later date for a Special Use Permit or other such relief from the Zoning Board regarding this issue. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) The Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed, or for which he is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). Pursuant to Regulation 1.1.4(A)(1)(a), a person will represent himself before a state or municipal agency if he “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in his [] own favor.” Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, these prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Upon receiving a hardship exception, the public official must also “[f]ollow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14-5(e)(1)(iii). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing himself before an agency of which he is a member. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by him herein justify a finding of hardship to permit him to appear before the Zoning Board. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered the following factors in cases involving real property: whether the subject property involved the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to his public office or was recently acquired; whether the relief sought involved a new commercial venture or an existing business; and whether the matter involved a significant economic impact. The Ethics Commission may also consider other factors and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions to public officials who sought to appear before their own boards regarding their personal residences. See, e.g., A.O. 2019-57 (granting a hardship exception to a Bristol Board of Tax Assessment Review member, permitting her to appear before her own board to appeal the tax assessment of her personal residence, provided that she recuse from participating in the board’s consideration of and voting on her appeal). Compare A.O. 2006-43 (declining to apply the hardship exception where property was not the petitioner’s principal place of business or primary residence, but rather a commercial venture that was acquired only a few months before the advisory request following his appointment to the Planning Board). In the present matter, the Petitioner’s ownership interest in his personal residence predates his appointment to the Zoning Board by a decade. Additionally, the Petitioner represents that the oppressive odor emanating from the composting business that blankets the neighborhood directly and negatively impacts his and his wife’s quality of life and, potentially, the value of their property. For all of these reasons, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear and represent himself before the Zoning Board, either personally or through legal counsel, to object to the appeal, and/or to his neighbor’s application for a Special Use Permit or other such relief regarding this matter, based upon his standing as an abutter. However, as he properly anticipated, the Petitioner is required to recuse from any discussions and/or voting by the Zoning Board as concern this matter. Notice of recusal must be filed consistent with section 36-14-6. Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his activity, to the official himself, his family member, his business associate, his employer, or any business that he represents. Section 36-14-7(a). Additionally, section 36-14-5(d) prohibits a public official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his family member, his business associate or his employer. The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of any person publicly expressing his [] own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his [] spouse or dependent child.” Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). Here, the Petitioner seeks guidance as to whether he may speak at a public forum before the Zoning Board during appellate proceedings initiated by his neighbor in response to a zoning violation issued by the Town Zoning Inspector to his neighbor. In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See A.O. 2017-11 (opining that the Chairperson of the North Providence Historic District Commission could, upon recusal, attend and speak at a public hearing before the North Providence Historic District Commission regarding a proposed development of property that directly abutted her personal residence); A.O. 2003-15 (opining that a member of the Scituate Town Council could, upon recusal, attend and provide public comment at meetings of the Zoning Board regarding a special use permit application where he was an abutter, provided that he did not receive special access or priority not available to any other member of the public). The Ethics Commission has applied both the hardship and public forum exceptions in a number of advisory opinions. See, e.g., A.O. 2019-51(opining that a member of the Barrington Town Council could appear before the Zoning Board, and potentially the Planning Board and the Town Council, to oppose the proposed subdivision and/or development of a vacant lot directly abutting property jointly owned by him and his spouse, based on both the hardship and public forum exceptions); A.O. 2018-58 (opining that a member of the Exeter Town Council, who was also a former member of the Exeter Planning Board, could appear before the Planning Board, Zoning Board, and potentially the Town Council to oppose the development of property directly abutting his personal residential property, based on both the hardship and public forum exceptions); A.O. 2003-33 (opining that a member of the Smithfield Zoning Board could appear before the Zoning Board to testify regarding a petition to locate a church, with a capacity of 2,300 seats and parking for 975 cars, directly across the street from his residential property, based on both the hardship and public forum exceptions). Consistent with these prior opinions, and pursuant to the public forum exception found at Regulation 1.2.3, it is the opinion of the Ethics Commission that the Petitioner may appear before Zoning Board to object to the appeal filed by his neighbor in response to a zoning violation concerning property that abuts the Petitioner’s own residential property, and/or to his neighbor’s application for a Special Use Permit or other such relief, provided that the Petitioner does not receive access or priority not available to any other member of the public. The Petitioner is further cautioned that he may not use his position in any way to influence members of the Zoning Board regarding this matter. See section 36-14-5(d). Finally, as he properly anticipated, the Petitioner must recuse from participation and voting as to this matter. Notice of recusal must be filed consistent with section 36-14-6. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Related Advisory Opinions: A.O. 2019-57 A.O. 2019-51 A.O. 2018-58 A.O. 2017-11 A.O. 2006-43 A.O. 2003-33 A.O. 2003-15 Keywords: Hardship Exception Property Interest Public Forum Exception