Advisory Opinion No. 2015-8 Approved: March 10, 2015 Re: Robert R. Moreau QUESTION PRESENTED: The Petitioner, a member of the Woonsocket City Council, a municipal elected position, requests an advisory opinion regarding whether he may represent himself before the Woonsocket Board of Tax Review to appeal the tangible property tax assessed against a business that he owns. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Woonsocket City Council, a municipal elected position, may represent himself before the Woonsocket Board of Tax Review in order to appeal the tangible property tax assessed against a business that he owns , based upon a finding of hardship in accordance with Rhode Island General Laws § 36-14-5(e). The Petitioner is a member of the Woonsocket City Council (“City Council”) , having served continuously since December 6, 2011 . He represents that, in his private capacity, he is the sole owner and employee of Knock Em’ Dead Pest Control, LLC (“Knock Em’ Dead”), a small pest control company that the Petitioner operates out of his truck on a part-time basis . He states that he has owned Knock Em’ Dead since first incorporating in 2003. The Petitioner states that , in 2014, he received a tangible property tax assessment for the first time from the City of Woonsocket (“City”) for Knock Em’ Dead’s equipment. He represents that he was surprised to receive such an assessment because he does not have a business location for Knock Em’ Dead. He states that Knock Em’ Dead’s equipment consists of two pumps, a toolbox and some chemicals that he stores in his truck. The Petitioner represents that he has appealed the City’s tangible property tax assessment for Knock Em’ Dead. Cognizant of the Code of Ethics, the Petitioner requests a hardship exception to permit him to appear before the Woonsocket Board of Tax Review (“Board” ), over which he has appointing authority as a member of the City Council, to appeal this tax assessment. Section 5(e) of the Code of Ethics prohibits public officials and employees from representing themselves before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(a)(1) (“Regulation 5016”). Public officials and employees are similarly prohibited from authorizing another person to appear on their behalf before a municipal agency of which they are a member or by which they are employed. Regulation 5016(a)(2). These prohibitions also include matters before another agency over which the public official is the appointing authority. Regulation 5016(a)(3). These prohibitions continue while the public official remains in office and for a period of one year thereafter. In contrast to most other Code of Ethics provisions, declining to participate in related discussions and votes is insufficient to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists. Section 5(e)(1) specifically authorizes exceptions, which the Commission has granted in certain circumstances, to allow a public official to represent himself before his own agency upon recusal and based upon a finding that a denial of such self-representation would result in a hardship. In reviewing questions of hardship on a case -by-c ase basis, the Commission has considered some of the following factors specific to cases involving property: whether the subject property involves the official ’ s principal residence or principal place of business; whether the official ’ s interest in the property is pre-existing to his or her public office or is recently acquired; whether the relief sought involves a new commercial venture or an existing business ; and whether the official’s interests were brought before an agency as a result of the actions of a third party. The Commission considers the totality of the circumstances and no single factor is determinative. The Commission has previously granted hardship exceptions, in somewhat analogous situations, permitting municipal officials to appear before their own boards and/or subsidiary boards to provide public comment relative to a zoning application for which they received notice as an abutter. See A.O. 2014-9 (granting a hardship exception to a Glocester Town Council member and permitting him to appear before his own board to provide public comment on a zoning change application for which he received notice as an abutter, provided that he recused from the Glocester Town Council’s discussion and vote regarding the zoning change); A.O. 2013-40 (granting a hardship exception to a Pawtucket Zoning Board member and permitting him to appear before his own board to oppose a use variance application for a property tha t abutted his primary residence, which he had owned for over twenty-five years, significantly predating his appointment to the Zoning Board in 2012); A.O. 2012-4 (granting a hardship exception to a Westerly Town Council member and permitting him to appear before the Westerly Planning Board, the Westerly Zoning Board and the Westerly Town Council to oppose the proposed development of property directly abutting his personal residence th at he had owned for twelve years prior to his election). The Commission has also granted hardship exceptions to municipal council members and permitted them to appear before a municipal entity over which they had appointing authority . However , in order to lessen any appearance of impropriety, the Commission has instructed such council members to recuse from the council’s appointment or reappointment of any person to that municipal agency until after the next election cycle for their seat on the council. See A.O. 2014-4 (granting a hardship exception to a Portsmouth Town Council member and permitting him to appear before the Portsmouth Zoning Board of Review, over which he had appointing authority, relative to the construction of a deck for his personal residence, provided that he recused from the Town Council’s appointment or reappointment of any person to the Zoning Board until after the election cycle for his Town Council seat following the resolution of his application for zoning relief). As an initial matter, we do not believe that public officials should be prevented from challenging a tax assessed against themselves or their business, provided that they request and receive an advisory opinion prior to representing themselves before a board of which they are a member , by which they are employed , or over which they have appointing authority. Here , the Petitioner seeks to appear before the Board, over which he has appointing authority as a member of the City Council, to appeal a first-time tax assessment on tangible property owned by his business , Knock Em’ Dead. He represents that he has owned and operated Knock Em’ Dead since 2003, approximately eight years prior to his election to the City Council. He further states that he feels this tax assessment is improper and wishes to challenge it before the Board. 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 total ity of the circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may represent himself before the Board of Tax Review to appeal the tangible property tax assessed against a business that he owns, provided that he recuses from the City Council’s appointment or reappointment of any persons to the Board of Tax Review until after the election cycle for his City Council seat following the resolution of his tax appeal. Notice of recusal shall be filed with the Commission in accordance with § 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. 2014-9 A.O. 2014-4 A.O. 2013-40 A.O. 2012-4 A.O. 2004-33 Keywords: Hardship Exception