Advisory Opinion No. 2017-54 Rhode Island Ethics Commission Advisory Opinion No. 2017-54 Approved: November 28, 2017 Re: Andrew T. Tyska 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 on representing himself before the Bristol Zoning Board of Review, over which the Town Council has appointing authority. 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 on representing himself before the Bristol Zoning Board of Review, over which the Town Council has appointing authority. The Petitioner is a member of the Bristol Town Council (“Town Council”), having been elected in November of 2016. In his private capacity, the Petitioner is the president of Lenmarine, Inc. (“Property”), also known as Bristol Marine, a yachting facility located in the Town of Bristol (“Town” or “Bristol”). The Petitioner represents that since 2007, the property has been owned by Rholen South, LLC (“Rholen South”), an entity managed by the Petitioner. Furthermore, the Petitioner states that the sole owner of Rholen South is Bristol Marine Holdings, LLC, an entity in which he owns a minority interest, and which serves as his primary source of income. The Petitioner represents that the Property is industrial in nature and is used by the marine trades in Bristol , including as storage for boats and other equipment . The Petitioner states that in order to provide better security to the Property and to create a visual buffer for its residential neighbors, Rholen South wishes to replace the existing temporary construction fence with a permanent , 8-foot fence. The Petitioner represents that the Bristol Zoning Ordinance requires Rholen South to obtain a dimensional variance from the Bristol Zoning Board of Review (“Zoning Board”) for the installation of a fence this height. The Petitioner explains that in September 2017, unaware of the Code of Ethics’ prohibition against representing himself before a board over which he has appointing authority, he filed Rholen South’s application for a dimensional variance with the Zoning Board. The Petitioner was subsequently advised by the Town Solicitor that the application cannot be heard unless the Petitioner seeks and receives a hardship exception by the Ethics Commission. 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 commercial property . 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. 2014-4 (granting a hardship exception to a member of the Portsmouth Town Council and permitting him to represent himself before the Portsmouth Zoning Board in order to seek a variance for his personal residence, provided that, in order to avoid any appearance of impropriety, he recused from the Town Council ’ s appointment or reappointment of any person to the Zoning Board until after the election cycle following the resolution of his applications for zoning relief). The Petitioner ’ s proposed conduct falls squarely within the Code of Ethics ’ prohibition on representing oneself before an agency over which one 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. In past advisory opinions, the Ethics Commission has applied the hardship exception where the matter involved a modification to the official ’ s place of business. For example, in Advisory Opinion 2001-29, the Ethics Commission granted a hardship exception to a member of the Narragansett Town Council permitting him to appear before the Narragansett Zoning Board, over which he had appointing authority, in order to apply for an alteration to the site plan to enclose the outdoor seating areas of his restaurant that are used during the summer season . The Ethics Commission based its decision primarily on the fact that the petitioner had owned and operated the restaurant for eight years prior to his election to the Town Council. See also A.O. 2011-33 (granting a hardship exception to a former Westerly Planning Board member and permitting him to seek a permit from his former board to install an additional sign at his ice cream shop because the business was his primary source of income and his ownership interest predated his service on the Planning Board); A. O. 2010-19 (granting a hardship exception to an alternate member of the Newport Zoning Board to appear before his own board and appeal the denial of a building permit to refurbish unused space for commercial rental use within a residential rental property, where his ownership predated his public service, the desired use was consistent with prior use, and had the least financial impact on the petitioner); A.O. 2005-32 (granting a hardship exception to a Westerly Planning Board member to appear before the Planning Board to request a zone change which would allow the petitioner to relocate his business, an ice cream shop, notwithstanding that his property rights did not pre-exist his appointment to the Planning Board) ; A.O. 95-110 (granting a hardship exception to a member of the Middletown Town Council permitting him to appear before the Middletown Zoning Board, over which the Town Council has appointing power, in order to apply for a special zoning exception for the addition of a drive-up window to the petitioner ’ s restaurant, based on his vested property rights in his primary business) . In contrast, the Commission has previously declined to grant a hardship exception for matters involving new commercial ventures. In Advisory Opinion 2003-49, the Assistant Solicitor for the Town of Lincoln wished to represent himself before the Lincoln Town Council, Zoning Board and Planning Board regarding the development of two parcels of real estate he owned in the Town. The hardship exception was not granted because the petitioner ’ s ownership of the lots did not predate his appointment as Assistant Solicitor and it was uncertain as to whether either lot would be used as the petitioner ’ s primary residence or simply resold in commercial transactions after development. The Commission also declined to find a hardship in Advisory Opinion 2000-41, where a member of the Exeter Zoning Board sought to generate additional income by entering into a contract to locate a cellular communications tower on his residential property. Although the subject property involved the petitioner ’ s principal residence, the proposed commercial venture served only to generate additional income for the petitioner. See also A.O. 2006-43 (declining to grant a hardship exception to a member of the Barrington Planning Board, who sought approval from his own board to construct an affordable housing development, because the property was not the petitioner ’ s residence or place of business, the development appeared to be in furtherance of a commercial venture, and the petitioner ’ s legal interest in the property did not predate his appointment to the Planning Board); A.O. 97-146 (concluding that a member of the North Kingstown Zoning Board could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer). In the present matter, the Petitioner would like to construct an 8-foot fence, replacing the existing temporary construction fence on his commercial property, in order to provide better security to the Property and to create a visual buffer for its residential neighbor s . Furthermore, the Petitioner represents that he has owned the Property for nine years prior to his election to the Town Council in 2016. 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 making an exception to section 5(e) ’ s prohibitions to allow the Petitioner to represent himself, either personally or through a representative, before the Zoning Board relative to his application for a dimensional variance to his business property. However, section 5(e) authorizes the Ethics Commission to condition such exception upon the Petitioner’s agreement to follow certain steps aimed at reducing any appearance of impropriety. Section 36-14-5(e)(1)(iii). Pursuant thereto , 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 the application before the Zoning Board , including any appeals. Additionally, the Petitioner shall, prior to the Zoning Board’s review of and vote on his variance application, inform the Zoning Board members of his receipt of the instant advisory opinion and that, consistent therewith, he will recuse from their reappointments as set forth above. 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. 2014-4 A.O. 2011-33 A.O. 2010-19 A.O. 2006-43 A.O. 2005-32 A.O. 2003-49 A.O. 2001-29 A.O. 2000-41 A.O. 97-146 A.O. 95-110 Keywords : Hardship Exception Property Interest