Advisory Opinion No. 2012-4 Re: Campbell D. Field, Esq. QUESTION PRESENTED The Petitioner, a member of the Westerly Town Council, a municipal elected position, seeks an advisory opinion regarding whether he may appear before the Westerly Planning Board, the Westerly Zoning Board and/or Westerly Town Council to oppose the proposed development of property directly abutting his personal residence. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Town Council, a municipal elected position, may appear before the Westerly Planning Board, the Westerly Zoning Board and/or Westerly Town Council to oppose the proposed development of property directly abutting his personal residence, based upon a finding that the unique facts as represented justify the application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1) and the public forum exception as provided in Commission Regulation 36-14-7003. The Petitioner is a member of the Westerly Town Council (“Town Council”), having been elected to a two-year term in November 2010. He states that his primary and only residence is located in a residential area of a rural character, on the eastern end of Westerly, Rhode Island. He informs that he has lived in this home for more than fourteen (14) years. He represents that he received notice as an abutter that a developer would be appearing before the Westerly Planning Board (“Planning Board”) regarding a proposal to develop a fifty-nine acre parcel directly adjacent to his primary residence. He advises that the proposal is for a Recreational Vehicle Park (“RV Park”), called the Ocean State RV Resort, with a capacity for two hundred twenty-five (225) RV parking spaces. He states that he believes the development of this RV Park will have a negative impact upon the value of his property and the use and enjoyment of his home in the summer months. The Petitioner represents that a group of concerned abutters and neighbors formed the McGowan’s Corners Neighborhood Association (“Neighborhood Association”) to oppose the RV Park development plan. He advises that he attended two Neighborhood Association meetings. The Petitioner informs that he and his wife have pledged, but not yet delivered, money to the Neighborhood Association for the purpose of hiring an attorney to formally oppose the RV Park development. He also states that his wife volunteered and was selected to serve as the Neighborhood Association’s treasurer. The Petitioner informs that he attended a Planning Board meeting on January 17, 2012, at which he stated his opinion as a member of the public that the RV Park development was not a permitted use in the RR60 zone. He states that the RV Park will be an agenda item at both the upcoming Planning Board meeting on February 21, 2012 and at the Westerly Zoning Board (“Zoning Board”) meeting on March 7, 2012. He states that he anticipates that the RV Park may be an agenda item at additional Planning and Zoning Board meetings, and might appear on a future Town Council agenda. The Petitioner would like to appear and speak on behalf of himself, as an abutting property owner, in opposition to the proposed RV Park before the Planning Board, Zoning Board, and/or the Town Council. Cognizant that his status as an abutter constitutes a conflict of interest, the Petitioner represents that he will recuse himself from participating in any Town Council matters involving the RV Park. Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1 Section 36-14-5(e)(1) prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. This prohibition on representing oneself also includes representing oneself before another agency for which he or she is the appointing authority. Commission Regulation 36-14-5016. 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. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions are absolute and continue while the official remains in office, and for a period of one year thereafter. As an initial matter, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before his own board, the Town Council, or any subsidiary boards over which he has appointing authority, here the Planning and Zoning Boards. However, the Commission will consider whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to appear before the Planning Board, Zoning Board and Town Council with certain restrictions. In considering questions of hardship on a case by case basis, the Commission has focused on a totality of the circumstances that have included such factors as: Whether the subject property involves the official’s principal residence or principal place of business; whether the official’s interest in the property is pre-existing to his public office or is recently acquired; whether the relief sought involves a primarily commercial venture; and whether the official’s interests were brought before an agency by a third party. Under a totality of the circumstances analysis, no single factor is determinative. The Commission has previously granted hardship exceptions to public officials seeking to oppose Planning and Zoning Board petitions brought by abutting property owners. For example, in Advisory Opinion 2003-33, the Commission granted a hardship exception to a Smithfield Zoning Board member and his spouse, permitting them to 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 their residential property. See also A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor to appear before the Zoning Board to oppose a zoning application for property abutting his personal residence, based upon the fact that the matter was brought to the Zoning Board through no action of his own and it involved his personal residence, which he had owned since 1981). The Commission has also granted hardship exceptions to Town Council members seeking to appear before boards over which they had appointing authority. In Advisory Opinion 2009-18, the Commission permitted a Little Compton Town Council member to appear before the Little Compton Zoning and Planning Boards regarding a property that the petitioner had inherited, which at that time was derelict, needing to be demolished and rebuilt. The Commission was persuaded by the fact that the property had been in the family for many years, had a similar previous commercial use, and that although it was not the petitioner’s primary residence, his intent was that a family member would reside in the structure if rebuilt. There, the Commission also required the petitioner to recuse from Zoning or Planning Board appointments until the completion of the next election cycle. See also A.O. 2004-33 (granting a hardship exception to a member of the Exeter Town Council and his spouse to appear before the Exeter Planning Board to request a special use permit to allow the petitioner to provide mental health counseling out of an office in his primary residence, provided that the petitioner recuses from Zoning or Planning Board appointments until the completion of the next election cycle). In the present matter, the Petitioner’s ownership interest in his personal and only residence predates his election to the Town Council by more than twelve (12) years. The development of the RV Park, which he opposes as an abutter, was brought before the Planning and Zoning Boards by a third party. Additionally, he represents that the development of the RV Park could not only negatively affect the value of his home, but also the use and enjoyment of his home. For all of these reasons, it is the opinion of the Ethics Commission that the totality of these particular circumstances do justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear before the Planning Board and the Zoning Board, and the Town Council if necessary, based upon his standing as an abutter, in order to oppose the development of the RV Park. However, the Petitioner is required to recuse from any Town Council matters involving the RV Park. Notice of recusal should be filed with the Commission and the Westerly Town Council in accordance with § 36-14-6. Furthermore, in order to lessen any appearance of impropriety, the Commission instructs the Petitioner to recuse from the Town Council’s appointment or reappointment of any person to the Planning and/or Zoning Boards until after the election cycle for his Town Council seat following the resolution of all matters involving the development of the RV Park. Public Forum Exception The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of any person publicly expressing his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child.” Commission Regulation 36-14-7003. Here, the Petitioner seeks guidance as to whether he may speak at a public forum before the Planning Board, Zoning Board and/or Town Council to state his opposition to the RV Park. In past opinions, the Commission has applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See e.g. A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. It is the opinion of the Ethics Commission that the Petitioner may speak at a public forum before the Planning Board, Zoning Board and/or Town Council because the proposed RV Park directly affects him based on his status as an abutter. In the event this matter appears on a Town Council Agenda, the Petitioner, as he has already recognized, is required to recuse from all participation in any matter involving the RV Park. Thereafter, the Petitioner’s right to address the Town Council, Planning Board or Zoning Board is the same as any other abutter or member of the public and he must not receive access or priority that is not available to any member of the public. Business Associates Additionally, the Petitioner also seeks guidance as to whether it is a conflict of interest for his wife to serve as the Treasurer of the Neighborhood Association; for him and his wife to contribute funds to the Neighborhood Association; and for him to participate in the Neighborhood Association as a non-officer member. While the Code of Ethics does not prohibit any of the above affiliations with the Neighborhood Association, recusal may be required if such involvement rises to the level of a business association.[1] However, irrespective of whether the Petitioner or his wife is a business associate of the Neighborhood Association, the Petitioner’s status as an abutter nevertheless requires him to recuse from all Town Council matters relating to the development of the RV Park. If the Neighborhood Association should appear before the Town Council on a matter that is unrelated to the RV Park, the Petitioner is advised to seek further advice from the Commission or exercise the recusal procedures set forth in § 36-14-6. Conclusion For all of the above reasons, it is the opinion of the Ethics Commission that the Petitioner may appear before the Westerly Planning Board, the Westerly Zoning Board, and the Westerly Town Council to oppose the development of an RV Park on property adjacent to his personal residence. This conclusion is based upon a finding that the unique facts as represented justify the application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1) and the public forum exception as provided in Commission Regulation 36-14-7003. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Commission Regulation 36-14-7003 Related Advisory Opinions: A.O. 2011-28 A.O. 2009-18 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 A.O. 2004-33 A.O. 2003-33 A.O. 2000-45 Keywords: Appointing Authority Business Associates Hardship Exception Property Interest Public Forum Exception Recusal [1] 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7).