Advisory Opinion No. 98-12

Re: Christopher P. Morra

A. QUESTION PRESENTED

The Petitioner, a member of the East Providence Zoning Board of Review (the "Board"), a municipal appointed position, may appear before that Board, personally or through counsel, to seek approval of a variance relating to property that the Petitioner uses as part of his personal residence, and which was purchased prior to his becoming a member of the Zoning Board.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an East Providence Zoning Board of Review ( the"Board") member, a municipal appointed position, may appear before the Board, personally or through counsel, regarding a variance for his property that he purchased prior to becoming a member of the Board. Section 36-14-5(e) of the Code of Ethics prohibits a public official or employee from “representing him or herself” before an agency of which he or she is a member. In cases of hardship the Ethics Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardship exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were a) the official’s or employee’s principal residence, or b) the official’s or employee’s place of business.

As represented by the Petitioner, the property in question here is immediately adjacent to his personal residence and is used in conjunction with that residence. Neither the present use of the property nor the zoning relief sought indicates an intent to sell the property or otherwise use it for any commercial purpose. Therefore, the Petitioner may appear, either personally or through counsel, before the East Providence Zoning Board of Review regarding the variance request.

C. DISCUSSION

1. Facts

The Petitioner is a voting member of the Zoning Board of Review of the City of East Providence. He received appointment to that position in January, 1997. The Petitioner resides in East Providence on property that is on the National Historic Register. He purchased the property in 1995 and has restored a farmhouse and windmill located there. He now wishes to rebuild a barn that previously existed on the property. Current zoning provisions allow the sort of reconstruction contemplated by the Petitioner but require that a dwelling unit be included as part of it. The Petitioner intends to rebuild the barn as a storage unit without a dwelling unit. In order to do so the Zoning Board of Review must allow a variance.

2. Analysis

Section 36-14-5(e)(1) of the Code of Ethics provides that “[n]o person subject to the Code of Ethics shall represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed.” The prohibition extends for a period of one year after an official or employee leaves public office or employment. The only exceptions to this strict prohibition are those allowed by this Commission “[i]n cases of hardship.”

The Petitioner’s request falls squarely within the parameters of Section 5(e)(1). He is a member of the Zoning Board. The matters relating to his proposed reconstruction project fall within the jurisdiction of the Zoning Board. The language of the prohibition enacted by the General Assembly clearly would prohibit the Petitioner from appearing before the Zoning Board to seek a variance absent a finding of hardship by this Commission.

Section 5(e)(1)’s prohibitions are stricter than virtually any other provisions in the Code of Ethics. 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. For example, Advisory Opinion 92-68 involved potential conflicts of interest under Sections 5(a) and (d) of the Code of Ethics. The Commission advised a member of the Coventry Planning Commission that he could avoid a potential conflict of interest by recusing from participation and votes relating to a development project with which his employer was involved. Not so with Section 5(e)(1), however. Absent an express finding by this Commission that a hardship exists, the prohibitions in that section are absolute. In other words, recusal is not an option unless the Commission determines that it is justified by a hardship. (No definition for “hardship” is found in the statute, nor has the Commission promulgated a definition. In considering questions of hardship on a case by case basis the Commission has focused on factors such as whether the matter to come before an agency involved a vested property right, whether the matter involved pre-existing or recently acquired property rights or employment, and whether the matter involved a significant economic impact.)

As discussed below, it is recommended that the circumstances here justify a finding of hardship. As in previous situations where the Commission has found hardships to exist, the property interests at issue with this Petitioner involve his principal residence and were acquired prior to his appointment to the Board. Allowing a hardship exception in circumstances such as this is consistent with a long line of decisions issued by this Commission, recognizing the need for flexibility in the otherwise rigid prohibitions of Section 5(e)(1) when vested, non-commercial property interests are involved.

The breadth of Section 5(e)(1) was underscored recently in a Superior Court decision upholding a finding of violation by this Commission. In Thomas DiLuglio v. Rhode Island Ethics Commission, C.A. 85-4556 (Slip opinion, February 14, 1996), the Court affirmed a finding by the Commission that a former State Senator had violated Section 5(e)(1) by lobbying his former colleagues within a year after he left the General Assembly. The former State Senator could not avoid liability under the statute by claiming that his lobbying efforts related to his livelihood as a lobbyist. Here, no such pecuniary interests are at issue.

In previous advisory opinions the Commission has found hardship exceptions to Section 5(e)(1) in situations where vested property interests were involved. See, e.g., Advisory Opinion 89-71; Advisory Opinion 94-38; General Commission Advisory Opinion 11 (1991). In those instances where a hardship has been found, as is the case here, the vested property interest was a principal residence or office.

Therefore, as a member of the Zoning Board of Review, the Petitioner may bring before that Board a request for a zoning variance that relates to his private residence; i.e., his request to reconstruct a barn adjacent to his home without including a dwelling in the project. The Petitioner may appear before the Board in person and/or with the assistance of counsel.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(e)(1)

Related Advisory Opinions:

94-38

92-68

89-71

GCA 11

Related Case Law:

Thomas DiLuglio v. Rhode Island Ethics Commission,

C.A. 85-4556 (Slip opinion, February 14, 1996)

Keywords:

Hardship exception

Property interest