Advisory Opinion No. 2005-31

Re:  William E. Clark

QUESTION PRESENTED:

The petitioner, a member of the Town of Portsmouth Tax Assessment Board of Review, a municipal appointed position, requests an advisory opinion regarding whether, given the fact that the petitioner is simultaneously engaged by the Town of Portsmouth as its Director of Business Development, the Code of Ethics prohibits his participation in the Tax Assessment Board's review of a citizen's appeal of a residential property assessment.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Portsmouth Tax Assessment Board of Review, a municipal appointed position, may participate in the Tax Assessment Board's review of a citizen's appeal of a residential property assessment, notwithstanding the fact that the petitioner is simultaneously engaged by the Town of Portsmouth as its Director of Business Development.

The petitioner informs that in 2001 he was appointed by the Portsmouth Town Council as the Town's Director of Business Development.  The petitioner represents that, pursuant to his annual contract with the Town, he is an independent contractor providing a minimum of 50 hours service per month at a fee of $2,000 per month.  In this position, his primary duties are to promote the development and expansion of business in Portsmouth, to provide assistance and encouragement for businesses to locate in Portsmouth, to promote and administer Portsmouth's State Enterprise Zone program as it relates to businesses, and to assist Portsmouth businesses in obtaining permits, approvals, sources for financing, job training, and work force development.

The petitioner further represents that since 1996 he has been a member of the Town of Portsmouth Tax Assessment Board of Review ("Tax Assessment Board"), and is its current Chairman.  The petitioner describes the Tax Assessment Board's function as hearing and deciding appeals of property owners from the Tax Assessor's valuation of property.  The petitioner states that in a currently pending residential appeal before the Tax Assessment Board, the appealing citizen has taken the position that there is an inherent conflict of interest between the petitioner's participation in the appeal as a member of the Board, and in the petitioner's contract position as the Town's Director of Business Development.  The appealing citizen has requested that the petitioner recuse himself from the appeal for that reason.  The petitioner asks whether the Code of Ethics requires such recusal.

Under the Code of Ethics, a public official or employee may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest occurs if it is reasonably foreseeable that the petitioner or any family member or business associate, or any business by which he is employed or represents, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  R.I. Gen. Laws § 36-14-7(a).  In addition, he may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties.  R.I. Gen. Laws § 36-14-5(b).  He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents.  R.I. Gen. Laws § 36-14-5(d).

Initially, the Commission concludes that the aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as a member of the Tax Assessment Board and as Portsmouth's Director of Business Development.  Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his duties in the public interest.

Since the petitioner’s duties as a member of the Tax Assessment Board and as Director of Business Development are separate and distinct, there is no indication that serving in both capacities would impair the petitioner's independence of judgment as to his public responsibilities.  Nor is there any indication that the simultaneous service, in and of itself, creates a substantial conflict with respect to carrying out duties in the public interest. Absent some direct financial nexus between the petitioner’s two public roles, no inherent conflict of interest would preclude such simultaneous service.

Furthermore, the facts as represented by the petitioner do not lead the Commission to conclude that the petitioner is required to recuse from a residential tax appeal by reason of his unrelated work for the Town as its Director of Business Development.  While the petitioner is arguably employed by the Town of Portsmouth as its Director of Business Development, and although the Code would prohibit the petitioner from making decisions as a member of the Tax Assessment Board that would financially impact any business associate or any business by which he is employed or represents, the Town is not considered to be a "business" or "business associate" under the Code of Ethics.  See A.O. 2002-55 (term "business" as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond).  See also A.O. 2003-61 (Code of Ethics does not consider relationship between public official and public body to be that of "business associates"); A.O. 2002-63 (relationship between petitioner and RIDEM as parties to real estate transaction not that of "business associates" under the Code); A.O. 97-17 (finding, inter alia, that the definition of "business" does not extend to public entities such as the Warren Town Council or the Bristol County Water Authority).

For these reasons, it is the opinion of the Rhode Island Ethics Commission that the petitioner is not required to recuse from residential real estate appeals before the Portsmouth Tax Assessment Board of Review by reason of his position as the Portsmouth Director of Business Development.  The petitioner states that it is his intention to recuse from appeals involving commercial or industrial property that is of interest to an existing or prospective business that the petitioner may be working with as Director of Business Development.  While the Commission cannot opine on the necessity of such recusal in the hypothetical, we commend the petitioner for his willingness to identify and avoid situations that may lead to even the appearance of impropriety.  The petitioner is encouraged to seek further, more specific advice as needed.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2003-61

2002-63

2002-65

2002-55

2000-5

97-17

96-90

Keywords:

business associate