Advisory Opinion No. 2005-43 Re: Peter J. O’Connell QUESTION PRESENTED: The petitioner, a member and Chairman of the Zoning Board of Review for the City of Newport, a municipal appointed position, requests an advisory opinion regarding whether he may voice his opposition, as an abutter, to a special use permit application being heard by the Zoning Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member and Chairman of the Zoning Board of Review for the City of Newport, may, upon his recusal from official participation, voice his opposition as an abutter to a special use permit application being heard by the Zoning Board. The petitioner is the Chairman of the Zoning Board of Review for the city of Newport. He represents that presently pending before the Board is an application for a special use permit to convert an existing standard restaurant to a fast food restaurant on property located on Thames Street in Newport. The petitioner states that he owns and resides at property on Webster Street in Newport that is within a 200-foot radius of the applicant's property. Accordingly, states the petitioner, he has received abutter's notice of the application and was given an opportunity to participate in the hearing before the Zoning Board. The petitioner states that he intends to recuse from participating in the subject application. Such recusal is both appropriate and required pursuant to sections 5(a) and 5(d) of the Code of Ethics, since there is a presumption that zoning changes to abutting property will result in a financial impact to the petitioner. See R.I. Gen. Laws § 36-14-5(a); 36-14-5(d). Upon his recusal, the petitioner must also execute a statement of conflict of interest pursuant to R.I. Gen. Laws § 36-14-6. Once recused, however, the petitioner and his wife wish to appear at the hearing as abutters and to voice their objections. The petitioner asks whether such appearance and voicing of opposition is permitted by the Code of Ethics. Under the Code of Ethics, a public official may not represent himself before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1). This prohibition remains in effect during the term of the official's appointment or employment and continues for one year thereafter. R.I. Gen. Laws § 36-14-5(e)(4). In cases of hardship, the Ethics Commission may allow exceptions to this blanket prohibition. In previous advisory opinions, the Commission has granted hardship exceptions in situations where vested property interests in a principal residence or office were involved. See e.g., A.O. 2003-33; 98-97; A.O. 94-38; A.O. 89-71; GCA 11. Furthermore, the Code also affords a public official a limited right to address his or her own board under what is generally called the "public forum exception." This exception reads as follows: No violation of this Chapter or regulations shall result 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. The circumstances represented by the petitioner are typical of those where application of the public forum exception is appropriate. The petitioner, although properly recusing from exercising any decision-making, wishes only to appear before the Zoning Board to provide public testimony on a matter that directly affects him, namely a proposed change in the use of property that abuts his own. In an analogous advisory opinion, the Commission opined that both the hardship exception and the public forum exception applied to permit a Smithfield Zoning Board member to appear before the Zoning Board to testify regarding a petition to locate a church directly across the street from their residential property. A.O. 2003-33. Other opinions have produced similar results. See A.O. 2003-15 (determining that a Scituate Town Council member may attend and participate in meetings of the Zoning Board regarding a special use permit application where he is an abutter); 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. 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); and 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). Consistent with these past opinions, we are of the opinion that the petitioner may address the Zoning Board regarding the subject special use permit application for abutting land as long as 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. See R.I. Gen. Laws 36-14-5(d). Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-6 36-14-7(a) 36-14-7003 Related Advisory Opinions: 2003-33 2003-15 2002-65 2000-9 98-3 97-114 97-85 Keywords: Public Forum Exception Property Interest