Advisory Opinion No. 2001-29

Re: George F. Lenihan, Jr.

QUESTION PRESENTED

The petitioner, a Narragansett Town Councilor, a municipal elected position, requests an advisory opinion as to whether he may appear before the Narragansett Zoning Board of Review, either personally or through counsel, to request specific relief for a business that he owned prior to his election to the Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Narragansett Town Councilor, a municipal elected position, may appear before the Narragansett Zoning Board of Review, either personally or through counsel, to request specific relief for a business that he owned prior to his election to the Council based on a finding that this situation constitutes a hardship exception to R.I. Gen. Laws § 36-14-5(e).

Since 1989, the petitioner has been the sole shareholder of GFL, Inc., a Rhode Island business corporation that operates a restaurant/bar known as Pancho O’Malley’s in Mariner Square, Narragansett. He advises that Pancho O’Malley’s has operated at that location since 1990, prior to his election to the Council in 1998. He represents that GFL operates its business in three condominium units, which he also owns, at Mariner Square. He wishes to enclose the outdoor sitting areas of Pancho O’Malley’s that are used during the summer season. Since any alteration to the condominium units requires an alteration of the previously approved site plan for Mariner Square, he indicates that it is necessary to seek relief from the Zoning 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 and for a period of one year following his or her official severance from the agency. 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 the official’s or employee’s principal residence, the official’s or employee’s place of business, or similar circumstances. See, e.g.., A.O. 89-71; A.O. 94-38; A.O. 98-97; GCA 11.

At issue in this opinion is whether an individual may appear before a board whose members he appoints. In previous opinions, the Commission has held that for purposes of applying R.I. Gen. Laws § 36-14-5 (e), an individual appearing before a board, the members of which he or she appoints, is analogous to appearing before one's own board. See, e.g.., A.O. 89-50; A.O. 89-52; A.O. 94-19. In Advisory Opinion 95-110, the Commission concluded that the Code of Ethics would not prohibit a Middletown Town Councilor from appearing before the Middletown Zoning Board, whose members the Council appoints, in order to protect his vested personal property rights. There, the Town Councilor and his father owned a restaurant in Middletown and sought a special exception from the Zoning Board to permit the addition of a drive up window to the restaurant. Consistent with its earlier opinions, the Commission finds that R.I. Gen. Laws § 36-14-5 (e) is applicable in this instance.

Here, the petitioner has owned the property at issue and operated a restaurant/bar at that location since 1990, eight years prior to his election to the Town Council. He advises that he wishes to enclose the outdoor sitting areas that are used during the summer season. Based on these facts, the Commission finds that the circumstances involving this property fall within the vested property exception to Section 5(e) described above. The Commission therefore concludes that the petitioner may bring the request for a zoning variance before the Zoning Board of Review, either personally or through counsel, pursuant to R.I. Gen Laws § 36-14-5(e).

Code Citations:

36-14-5(e)

Related Advisory Opinions:

2000-84

2000-54

2000-51

2000-50

99-127

98-123

98-113

98-105

98-97

98-94

98-12

97-114

97-40

96-107

95-110

94-38

94-19

89-71

89-52

89-50

GCA 11

Keywords:

Appointing authority

Business interest

Property interest

Hardship exception