Advisory Opinion No. 2016-37

Rhode Island Ethics Commission

Advisory Opinion No. 2016-37

Approved: October 18, 2016

Re:  Michael P. Murphy

QUESTION PRESENTED:

The Petitioner, a Certified Appraiser in the City of Providence Tax Assessor’s Office, a municipal employee position, seeks an advisory opinion as to whether the Code of Ethics prohibits him from working, in his private capacity, as a real estate salesperson. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Certified Appraiser in the City of Providence Tax Assessor’s Office, a municipal employee position, is not prohibited by the Code of Ethics from working, in his private capacity, as a real estate salesperson, provided that all such work is performed on his own time and without the use of public resources or confidential information obtained as part of his municipal employment. 

The Petitioner is a Certified Appraiser in the City of Providence Tax Assessor’s Office (“Tax Assessor’s Office”).  He has been employed by the Tax Assessor’s Office for the past twelve (12) years.  He represents that the City, through a contractor, conducts a statutorily required three-year revaluation of taxable property.  The Petitioner represents that individual property owners may dispute the City’s assessments by filing an appeal with the Tax Assessors Office.  Such appeals are reviewed by one of the three appraisers[1] within the Tax Assessor’s Office.  The Petitioner explains that his duties include reviews of residential and small commercial property appeals.  In the past he has recused from any discussions or decision-making involving appeals filed by his friends or family members.  In the event of his recusal, the Petitioner states that an appeal is reviewed by one of his fellow appraisers. 

In his private capacity, the Petitioner informs that he has been working part-time, on nights and weekends, as a real estate salesperson handling statewide real estate matters primarily for friends and family members.  The Petitioner states that as a real estate salesperson he has not yet represented clients in the City of Providence.  The Petitioner explains that his private work has been and will continue to be performed on his own time and without the use of public resources or confidential information obtained as part of his municipal duties.  The Petitioner further represents that he will recuse from discussions or decision-making on matters relating to his private employment or real estate clients that may come before him in his public capacity.  Given this set of facts, the Petitioner is requesting an advisory opinion as to whether the Code of Ethics prohibits him from working, in his private capacity, as a real estate salesperson.  

Under the Code of Ethics, a public employee is prohibited from accepting other employment that will either impair his independence of judgment as to his official duties or employment, or induce him to disclose confidential information acquired by him in the course of his official duties.  R.I. Gen. Laws § 36-14-5(b).  A public official may not participate in any matter in which he has an interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of his duties or employment in the public interest.  Section 36-14-5(a).  A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  Finally, a public official may not use his public office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents.  Section 36-14-5(d). 

The Commission has issued a number of advisory opinions in which it has given approval for public employees to accept outside employment provided that: a) the employees’ official duties for their agency do not directly relate to their private employment; b) the employees complete the work outside of their normal working hours; c) the employees do not appear before their own agency; and d) the employees do not use public resources for their outside employment.    See A.O. 2014-11(opining that a securities examiner in the Division of Securities Regulation at the Department of Business Regulation is not prohibited by the Code of Ethics from engaging in private employment, on his own time, as a real estate salesperson).  See also A.O.2013-35 (opining that the Chief of the Rhode Island Bureau of Audits (“BOA”) was not prohibited from engaging in self-employment on her own time, as an income tax preparer, notwithstanding that the BOA’s Deputy Chief was supervising an audit of the Division of Taxation, given that the petitioner’s supervision was not required and she removed herself from any involvement); A.O. 2011-20 (opining that a senior planner at the Rhode Island Department of Administration, Division of Planning, was not prohibited by the Code of Ethics from working in his private capacity as a real estate salesperson, provided that all such work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment).

In the present matter, based upon the Petitioner’s representations above, it is the opinion of the Ethics Commission that the Petitioner’s private employment as a real estate salesperson is not in substantial conflict with the exercise of his public duties.  Accordingly, the Code of Ethics does not prohibit the Petitioner, in his private capacity, from working as a real estate salesperson, provided that all work is performed on his own time, he does not use public resources or confidential information obtained as part of his employment with the Tax Assessor’s Office, he does not use his public position to promote his private employment, and he does not list his public position as part of the advertisement of his work as a real estate salesperson.  The Petitioner is reminded that he cannot solicit clients for his work as a real estate salesperson during the hours of his public employment or from any person who has a financial interest in his public duties.  The Petitioner is also advised to either recuse himself or seek further guidance from the Commission if matters relating to his private employment come before him in his public position.  Any notice of recusal must 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(a)

36-14-5(b) 

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

A.O. 2014-11

A.O. 2013-35

A.O. 2011-20

Keywords: 

Private Employment

Recusal