Advisory Opinion No. 2003-33

Re: S. James Busam

QUESTION PRESENTED

The petitioner, a Smithfield Zoning Board member, a municipal appointed position, requests an advisory opinion as to whether he and his spouse may appear before the Zoning Board to testify regarding a petition to locate a church directly across the street from their residential property.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Smithfield Zoning Board member, a municipal appointed position, and his spouse may appear before the Zoning Board to testify regarding a petition to locate a church directly across the street from their residential property. The hardship exception to Section 5(e) of the Code of Ethics and the Public Forum Exception of Commission Regulation 7003 both provide a basis for the petitioner’s appearance before the Zoning Board, given that the matter impacts his residential property.

The petitioner advises that on March 26, 2003 the Smithfield Zoning Board will consider a petition filed by the First Church of God to construct a church directly across the street from his residence. He represents that the proposed church would have a capacity of 2,300 seats and parking for 975 cars. He indicates that he has recused from the Zoning Board’s consideration of the matter and has filed notice of recusal with the Ethics Commission. The petitioner states that he and his spouse are concerned that the proposed church would impact their property value and quality of life. He requests a hardship exception so that he and his spouse may testify before the Board regarding the proposal.

Section 36-14-5(e) of the Code of Ethics prohibits a public official or employee from representing 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. See R.I. Gen. Laws § 36-14-5(e). 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. 98-97; A.O. 94-38; A.O. 89-71; GCA 11. Commission Regulation 7003, the Public Forum Exception, further provides that any person may publicly express 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.

In past advisory opinions, the Commission has advised public officials about their rights under the public forum exception. See A.O. 2002-65 (advising that a member of the Lincoln Planning Board may address the Board regarding a proposed condominium development at a public meeting at which members of the public are invited to speak, provided that he does not receive special access or priority not available to any other member of the public); A.O. 2000-9 (finding that member of the Tiverton Town Council may provide public comment before the Council in his individual capacity on the general issue of sewerage services when such matters would impact his private financial interests as the owner of a septic tank cleaning service, provided that he does so in a public forum and is afforded no greater access to the Council by virtue of his public office); and A.O. 97-85 (opining that the Central Falls City Solicitor may testify as a private citizen at a Central Falls Liquor Board hearing regarding the revocation of a liquor license of a bar located adjacent to the petitioner's private law offices).

Here, the Commission finds that the circumstances involving the First Church of God’s petition before the Zoning Board fall within the vested property exception to Section 5(e) since the subject property is located directly across from the petitioner’s residential property. Therefore, the petitioner and his spouse may appear before the Zoning Board to testify regarding the matter based upon on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e), and in accordance with the Public Forum Exception. The petitioner and his spouse may address the Zoning Board at any public meeting, provided that he does not receive access or priority not available to any member of the public. This, of course, does not apply to executive sessions, since those meetings are not generally accessible to the general public. We further caution the petitioner that he may not in any way use his position to influence members of the Zoning Board improperly. See R.I. Gen. Laws 36-14-5(d).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-7003

Related Advisory Opinions:

2003-15

2002-67

2001-29

2001-9

2000-84

2000-51

99-127

99-124

98-105

98-97

98-94

98-12

97-114

97-85

94-19

89-71

GCA 11

Keywords:

Hardship Exception

Property Interest

Public Forum Exception

Revolving Door