Advisory Opinion No. 2018-47 Rhode Island Ethics Commission Advisory Opinion No. 2018-47 Approved: September 11, 2018 Re: William E. Coyle III, MAI, SREA QUESTION PRESENTED: The Petitioner, a Commercial Real Estate Appraiser in the City of Providence Tax Assessor’s Office, a municipal employee position, who in his private capacity owns a real estate appraisal and consulting company that has an ongoing contract with the Providence Water Supply Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing to perform appraisals under the contract, given that the Water Supply Board is owned by the City of Providence. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Commercial Real Estate Appraiser in the City of Providence Tax Assessor’s Office, a municipal employee position, who in his private capacity owns a real estate appraisal and consulting company that has an ongoing contract with the Providence Water Supply Board, is not prohibited by the Code of Ethics from continuing to perform appraisals under the contract, notwithstanding that the Water Supply Board is owned by the City of Providence. The Petitioner informs that he is a full-time Commercial Real Estate Appraiser in the City of Providence Tax Assessor’s Office (“Tax Assessor’s Office”). He has been employed by the Tax Assessor’s Office since March 2016. He explains that his duties include the valuation of commercial real estate and personal/tangible property within the City of Providence. In his private capacity, the Petitioner informs that he owns Coyle Appraisal Companies (“Coyle Appraisal”), a private, family owned, appraisal company where he works part-time, as an appraiser.[1] He represents that Coyle Appraisal has an existing contract, that has been renewed on multiple occasions throughout the last 20 years, with the Providence Water Supply Board (“Providence Water”) to provide appraisal services. The Petitioner further states that Providence Water is owned by the City of Providence and provides water to more than 600,000 Rhode Islanders.[2] The Petitioner represents that almost all of the properties acquired by Providence Water are located outside the City of Providence. The Petitioner states that Providence Water has a list of appraisers that it contracts with to conduct valuation on properties that it purchases and does not utilize the appraisers in the Tax Assessor’s Office. The Petitioner explains that his private work has been, and will continue to be, performed on his own time, on evenings and weekends, outside his normal working hours at the Tax Assessor’s Office. He also represents that Coyle Appraisal currently does not and will not accept any work that involves properties located within the City of Providence. Based on this set of facts the Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from continuing to provide, in his private capacity, appraisal services to Providence Water. 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). Furthermore, 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). Finally, Section 5(h) of the Code provides that no person subject to the Code nor any business associate of said person may enter into a contract with a state or municipal agency unless “the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.” Section 36-14-5(h). This section further provides that “contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details.” Id. The professional services exception of section 5(h) normally covers contracts for legal, medical, architectural or accounting services. See A.O. 2000-35. 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 represent themselves or others before their own agency; and d) the employees do not use public resources for their outside employment. See 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); A.O. 2005-52 (opining that a part-time Town Planner for the Town of Exeter was not prohibited by the Code of Ethics from accepting part-time work as a consultant on two projects for the Exeter Town Council and Planning Board); A.O. 2005-15 (opining that the Principal Civil Engineer for the Department of Environmental Management (“DEM”) was not prohibited by the Code of Ethics from accepting part-time employment with a private firm that submits work to the DEM). 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 appraiser and owner of a private appraisal company 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 continuing to provide appraisal services to Providence Water, provided that he adheres to all of his representations referenced herein, and further that 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, he does not list his public position as part of the advertisement of his private work as a real estate appraiser, and does not accept in his private capacity appraisal assignments that involve property within the City of Providence. Also, the Petitioner cannot solicit clients for his work as a real estate appraiser during the hours of his public employment or from any person who has a financial interest in his public duties. The Petitioner is reminded that as a municipal employee any future contract for appraisal services which he seeks in his private capacity from a state or municipal agency must be awarded through a public process in compliance with section 5(h) of the Code. Therefore, any future contract renewals with Providence Water relative to the Petitioner’s ability to continue to be on the list of appraisers utilized by Providence Water have to also comply with the open and public process requirements of section 5(h) of the Code. Finally, the Petitioner is 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. 2013-35 A.O. 2011-20 A.O. 2005-52 A.O. 2005-15 Keywords: Private Employment