Advisory Opinion No. 2017-33 Rhode Island Ethics Commission Advisory Opinion No. 2017-33 Approved: August 8, 2017 Re: Nathan T. Calouro QUESTION PRESENTED: The Petitioner, a member of the Bristol Town Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the Bristol Zoning Board, over which the Town Council has appointing authority, in order to seek a dimensional variance for his personal property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Bristol Town Council, a municipal elected position, qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the Bristol Zoning Board, over which the Town Council has appointing authority, in order to seek a dimensional variance for his personal property. The Petitioner has been a member of the Bristol Town Council (“Town Council”) since 2012, and has served as the Council President since November 2014. He represents that he would like to install a 6-foot-high stockade fence to replace the existing 4.5-foot fence on his primary residence in Bristol. The Petitioner states that he and his wife purchased the property in 2010 and have resided there ever since. The Petitioner explains that the additional height would provide his family and guests privacy when using their swimming pool. The Petitioner represents that the Bristol Zoning Ordinance requires him to obtain a dimensional variance from the Bristol Zoning Board (“Zoning Board”) for the installation of a fence this height. Given this set of facts, the Petitioner is seeking the guidance of the Ethics Commission regarding whether he may appear before the Zoning Board, over which he has appointing authority as a member of the Town Council, in order to obtain a dimensional variance for his personal residence. The Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed or for which he is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 36-14-5016(a)(1), (2) & (3) (“Regulation 5016”). Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, the prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Upon receiving a hardship exception, the public official must also “[f]ollow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14-5(e)(1)(iii). See, e.g., A.O. 2015-18 (granting a hardship exception to a member of the Foster Town Council, permitting him to appear before the Foster Planning and Zoning Boards in order to establish a residential compound on his personal property, provided that he recused from the Town Council’s appointment or reappointment of any persons to the Zoning and Planning Boards until after the election cycle following the resolution of his applications before both Boards, including any appeals). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition against representing himself before an agency over which he has appointing authority. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by the Petitioner herein justify a finding of hardship to permit him to appear before the Zoning Board. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered some of the following factors in cases involving real property: whether the subject property involved the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to his public office or was recently acquired; whether the relief sought involved a new commercial venture or an existing business; and whether the matter involved a significant economic impact. The Ethics Commission may consider other factors and no single factor is determinative. Previously, the Ethics Commission has applied the hardship exception in circumstances that present somewhat analogous situations. In Advisory Opinion 2016-8, for example, the Ethics Commission granted a hardship exception to a member of the Portsmouth Town Council permitting him to appear before the Portsmouth Planning Board of Review, over which the Town Council had appointing authority, in order to seek a dimensional variance to install an above-ground swimming pool at his personal residence. There, the Ethics Commission granted the petitioner a hardship exception based upon petitioner’s representations that it involved his personal residence, which was purchased prior to his election to the Town Council, and the purpose of the swimming pool was for the personal use and enjoyment of his family. See also A.O. 2014-4 (granting a hardship exception to a Portsmouth Town Council member and opining that he could represent himself before the Portsmouth Zoning Board to seek dimensional variances from the setback requirement and the lot coverage requirement in order to construct a removable wooden cover over his existing above-ground septic tank, to create more usable space in his backyard); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member and opining that she could represent herself before her own board in order to seek a dimensional variance from the side-yard setback to build a storage shed at her personal residence that she acquired prior to her appointment to the Board). In the present matter, the Petitioner would like to construct a 6-foot-high stockade fence to replace the existing 4.5-foot fence on his personal residence, giving his family and friends privacy when using their pool. The Petitioner further represents that he has owned the property since 2010, prior to his election to the Town Council in 2012. Considering the Petitioner’s above representations and consistent with our past advisory opinions in this area, it is the opinion of the Ethics Commission that the totality of the circumstances justifies a hardship exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may represent himself, either personally or through a representative, before the Zoning Board relative to his application for a dimensional variance. However, in order to avoid an appearance of impropriety, the Petitioner must recuse from the Town Council’s appointment or reappointment of any persons to the Zoning Board until after the election cycle for his Town Council seat following the complete resolution of his application before the Zoning Board, including any appeals. Notice of recusal shall be filed with the Ethics Commission in accordance 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. 2016-8 A.O. 2015-18 A.O. 2014-4 A.O. 2011-34 Keywords: Hardship Exception Property Interest