Advisory Opinion No. 2015-28 Rhode Island Ethics Commission Advisory Opinion No. 2015-28 Approved: May 19, 2015 Re: Steven M. Hudak, Esq. QUESTION PRESENTED: The Petitioner, a member of the Town of Bristol Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board, for purposes of obtaining a dimensional variance to construct a second-story bedroom on his personal residence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of Bristol Zoning Board of Review, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board, for purposes of obtaining a dimensional variance to construct a second-story bedroom on his personal residence. The Petitioner is an alternate member of the Town of Bristol Zoning Board of Review (“Zoning Board”), having first been appointed thereto in March 2013. The Petitioner represents that he and his spouse have owned their home located on Franklin Street in Bristol, which has served as their primary and only residence, since 2005. The Petitioner explains that, at the time that he and his wife purchased their home, they had no children. He informs that their home is a two-bedroom cape with one and a half bathrooms. He further represents that, currently, they have three children ages 6, 4, and 2, all of whom share one bedroom. He states that he and his spouse would like to construct a second-story bedroom, measuring approximately 11 feet by 22 feet, at the rear of their home. The Petitioner explains that, because his home has less than the required side-yard dimensions, he will need to request a dimensional variance from the Zoning Board in order to construct the second-story bedroom at his home. Cognizant of the Code of Ethics’ prohibition against representing himself before a municipal agency of which he is a member, the Petitioner requests an advisory opinion as to whether his situation justifies application of the hardship exception set forth in Rhode Island General Laws § 36-14-5(e)(1). Section 5(e) of the Code of Ethics prohibits a public official from representing himself before a state or municipal agency of which he is a member or by which he is employed, unless the Commission determines that a hardship exists. Section 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1). Furthermore, section 5(e)’s prohibition against representing oneself has been extended to include authorizing and/or directing another person to appear on one’s behalf before an agency or board of which the public official is a member or by which he is employed. Commission Regulation 36-14-5016(a)(2). These prohibitions apply while the public official is in office and remain in effect for a period of one year thereafter. Section 36-14-5(e)(4). Moreover, while many conflicts can be avoided under the Code of Ethics by recusing from participating and voting in related matters, such recusal is insufficient to avoid section 5(e)’s prohibitions absent an express finding by the Ethics Commission that a hardship exists. Section 5(e)(1) specifically authorizes the Ethics Commission to grant exceptions, in certain circumstances, to allow a public official to represent himself before his own agency based upon a finding that a denial of such self-representation would result in a hardship. Upon being granted a hardship exception, the public official is required to recuse from participating in his agency’s consideration of and voting on the matter at issue and to follow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14-5(e)(1)(ii) & (iii). In considering and deciding the applicability of the hardship exception on a case-by-case basis, in matters involving real property the Commission has focused on the totality of the circumstances including, but not limited to, factors such as: whether the subject property involves the official’s primary residence or primary place of business; whether the official’s interest in the property is pre-existing to his public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. When considering the totality of the circumstances, no single factor is determinative. There is a plethora of prior advisory opinions in which the Commission has granted a hardship exception based on similar circumstances. In Advisory Opinion 2014-26, the Commission considered whether a member of the Barrington Zoning Board of Review could appear before his own Board to request a dimensional variance to construct a second-story dormer on his personal residence. There, the Commission granted a hardship exception based on the petitioner’s representations that the dimensional variance sought involved his principal residence, his ownership of the subject property significantly predated his public office, and the relief sought was personal and not connected to any commercial objective. See also A.O. 2013-6 (granting a hardship exception to a Narragansett Zoning Board member who sought a variance to use his current residence as a detached guesthouse, given that the property served as his primary residence, his ownership predated his appointment to public office by more than 30 years, and the relief sought was necessary to enter into a purchase and sales agreement with the only prospective buyer in years); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member who sought a dimensional variance to construct a storage shed on her personal property, on the bases that the property involved her principal residence, her ownership of the subject property predated her public office by over two years, and the relief sought was personal and not tied to any commercial objective); A.O. 2010-9 (granting a hardship exception to an Exeter Zoning Board member who sought a dimensional variance to install an above-ground swimming pool at his personal residence, based on the petitioner’s representations that the relief sought was for his personal residence, his ownership in the subject property predated his public service, and the relief sought did not implicate any commercial interests). In contrast, in those instances in which the Commission has declined to grant a hardship exception the circumstances generally have been distinguishable from those in the present matter. In Advisory Opinion 2000-41, an Exeter Zoning Board member sought a special use permit to construct a cellular communications tower on his property. The Commission declined to grant a hardship exception on the basis that the relief sought related to a commercial venture, the purpose of which was to generate additional income for the petitioner, and did not, therefore, trigger application of the hardship exception. See also A.O. 97-146 (deciding that a North Kingstown Zoning Board member’s requested relief did not qualify for a hardship exception, because the subject property did not involve his principal residence or place of business, but instead, was a private business venture). In the present matter, the Petitioner seeks a dimensional variance in order to construct a second-story bedroom at the rear of his primary residence for the purpose of adding a third bedroom to accommodate his family. He states that his three children are currently sharing one bedroom in this two-bedroom home. He has owned this property, his primary and only residence, since 2005. His ownership of the home predates his appointment to the Zoning Board by eight years. Further, the zoning relief he seeks is for personal use and not related to any commercial or business venture. Based on the above representations and prior consistent advisory opinions, it is the opinion of the Ethics Commission that the totality of the circumstances warrants application of the hardship exception to section 36-14-5(e)’s prohibitions. Accordingly, the Petitioner may appear, personally or through counsel, before the Zoning Board to request a dimensional variance for his personal residence. The Petitioner, however, must recuse himself from participating in the Zoning Board’s consideration of and voting on his application for a variance. Notice of recusal must be filed with the Ethics Commission in compliance with section 36-14-6. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2014-26 A.O. 2013-6 A.O. 2011-34 A.O. 2010-9 A.O. 2000-41 A.O. 97-146 Keywords: Hardship Exception Property Interest