Advisory Opinion No. 2011-23 Advisory Opinion No. 2011-23 Re: Denise L. Stetson QUESTION PRESENTED The Petitioner, the Town Planner for the Town of Richmond, a municipal appointed position, requests an advisory opinion as whether she may appear before the Richmond Planning Board and the Richmond Town Council in order to subdivide the property surrounding her personal residence. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Planner for the Town of Richmond, a municipal appointed position, may appear before the Richmond Planning Board and the Richmond Town Council in order to subdivide the property surrounding her personal residence, based on a finding that the unique facts as represented justify application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1). The Petitioner is the Town Planner for the Town of Richmond (“Town”), having been appointed by the Town Council in 2006. She informs that her official duties include serving as the administrative officer to the Planning Board. She represents that in 1979, her husband’s parents subdivided their property of 63 acres, located in the Town, in order to give her and her husband an 18 acre tract of land. She informs that she and her husband built a home on the 18 acre tract and have lived there since 1980. Presently, the Petitioner and her husband would like to subdivide their own 18 acres in order to give their 30-year old son a lot of approximately 2 acres, the minimum required by the zoning ordinance, on which he can build his own home. She informs that her son is a teacher at Exeter/West Greenwich High School, conveniently located about ten minutes from her home. The Petitioner states that she intends to keep her remaining 16 acres as is, with no intention to further subdivide, except for the purpose of administratively transferring land to her son if and when the property and home become too much for her and her husband to manage. She informs that the principal use of her property is residential, with the possibility of some agricultural accessory uses planned once she retires. The Petitioner represents that this subdivision requires two separate municipal applications. First, she informs that she must seek approval from the Planning Board for the subdivision. As the administrative officer for the Planning Board, she recognizes that she could not review or comment on her own subdivision application. To that end, she explains that the Town’s land development and subdivision regulations provide for the designation of an alternate administrative officer to preside over her application, who would be the Planning Board chair or a designee of the chair. Second, she informs that she must apply to the Town Council for a zoning map amendment. The Petitioner states that she intends to hire a land use attorney to represent her and her husband before the Planning Board and the Town Council relative to her application to subdivide her lot. She also states that she intends to engage the services of a surveying firm to prepare the necessary documentation. She represents that neither the land use attorney nor the surveying firm regularly appear before the Planning Board or Town Council, thereby avoiding any potential business associate conflicts. Cognizant of section 5(e)’s prohibition against representing herself before a municipal agency by which she is employed, the Petitioner requests an advisory opinion as to whether her situation justifies the application of the hardship exception found at section 5(e)(1), given that in order to subdivide her property she will need to appear before the Planning Board and the Town Council.[1] Under the Code of Ethics, a public official may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of her duties in the public interest. Section 36-14-5(a). She may not use her public position or confidential information received through her position to obtain financial gain, other than that provided by law. Section 36-14-5(d). Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing herself or any other person before any state or municipal agency of which she is a member or by which she is employed. Section 36-14-5(e)(1). An amendment to the Code of Ethics clarifies that the prohibition against representing oneself also includes authorizing or directing another person to appear before a board on one’s behalf. Commission Regulation 36-14-5016(a)(2). Absent an express finding of hardship by the Commission, section 5(e)’s prohibition continues while the official remains in office, and for a period of one year thereafter. Section 36-14-5(e)(1), (e)(4). Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code. 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, the prohibitions in that section are absolute. Here, as the administrative officer to the Planning Board, appointed by the Town Council, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before a municipal agency for which she is a member or by which she is employed. Having determined that section 5(e) prohibits the Petitioner’s application to the Planning Board and the Town Council at this time, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to proceed before the Planning Board and the Town Council with certain restrictions. In considering questions of hardship on a case by case basis, the Commission has focused on the totality of the circumstances including, but not limited to, the following factors in cases involving property: 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 her public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. Under a totality of the circumstances analysis, no single factor is determinative. The Commission considered a similar fact pattern in Advisory Opinion 2007-51. There, a member of the Portsmouth Town Council sought advice as to whether her spouse could appear before the Portsmouth Zoning Board of Review to seek a variance for property that they jointly owned. A.O. 2007-51. In that case, the property under review included the personal residence and an adjacent lot on which the petitioner and her spouse had built a garage, but sought to build a new personal residence, intending to give their existing home to their then 24-year old son. Id. The Commission opined that because the petitioner owned the land for over twenty years, predating her election to Town Council, and that she sought to develop the lot directly adjacent to her residence, the particular facts justified the application of the hardship exception. Id. There are many other cases in which the Commission has allowed public officials to appear before their own or subsidiary boards based upon a finding of hardship when it concerned the official’s residential property. See e.g. A.O. 2007-42 (Portsmouth Town Council member may appear before Zoning Board for variance on his residence); A.O. 2007-19 (Little Compton Town Council member may appear before the Zoning Board and Planning board for a variance for his residential property). In the present matter, the Petitioner seeks to subdivide her 18 acre property in order to create an approximately 2 acre lot for her 30-year old son, on which he would build his personal residence, just as her husband’s parents subdivided their land in 1979 so their son could build his own home with the Petitioner. The Petitioner and her husband have owned this property for over thirty years, and it has been in her husband’s family since 1963, clearly predating her appointment as the Town Planner in 2006. Based upon the above representations, it is the opinion of the Ethics Commission that the totality of the circumstances justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear before the Richmond Planning Board and the Richmond Town Council regarding the applications for subdividing her property, provided that she advises the Planning Board and the Town Council in writing of the existence and nature of her interest in the subdivision applications and that she recuses herself from participating in the Planning Board’s and the Town Council’s consideration and disposition of such applications in accordance with section 34-14-6. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) § Regulation 36-14-5016 Related Advisory Opinions: A.O. 2009-18 A.O. 2007-51 A.O. 2007-42 A.O. 2007-19 Keywords: Hardship Exception [1] The Petitioner’s request for an advisory opinion also inquires as to what steps her husband, joint owner of the property to be subdivided and also a member of the Conservation Commission in the Town of Richmond, must take in order to comply with the Code of Ethics. The specific issue before the Commission, however, is limited to whether the hardship exception applies to the Petitioner.