Advisory Opinion No. 2019-57 Rhode Island Ethics Commission Advisory Opinion No. 2019-57 Approved: October 8, 2019 Re: Carolyn Medina QUESTION PRESENTED: The Petitioner, a member of the Bristol Board of Tax Assessment Review, a municipal appointed position, requests an advisory opinion regarding whether she qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before her own board to appeal the tax assessment of her personal residence. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Bristol Board of Tax Assessment Review, a municipal appointed position, may represent herself before her own board in order to appeal the tax assessment of her personal residence, based upon a finding of hardship in accordance with the Rhode Island General Laws § 36-14-5(e). The Petitioner was appointed to the Bristol Board of Tax Assessment Review (“Board”) in October of 2017. This is a volunteer position. The Board is charged with hearing appeals from Bristol residents regarding their property tax assessments. The Petitioner states that the recent assessment of the home that she purchased in 2004 in which she presently resides has increased significantly. She further states that she attempted a resolution directly with the revaluation company, as is the process for all Bristol residents, reporting that it resulted in the lowering of the assessment only slightly. The Petitioner describes the present assessment of her home as being far in excess of both its fair market value and the value of comparably sized and conditioned properties owned by her neighbors. The Petitioner would like to appeal her tax assessment to the Board and has engaged an appraiser who is conducting an appraisal of the property which she intends to submit with her appeal. Cognizant of the Code of Ethic’s prohibition against representing herself before a municipal agency of which she is a member, the Petitioner states that she would recuse from all discussions and decision-making regarding her appeal and leave the room during deliberations. She requests an advisory opinion as to whether her situation justifies application of the hardship exception set forth in Rhode Island General Laws § 36-14-5(e)(1). The Code of Ethics prohibits a public official from representing herself or authorizing another person to appear on her behalf before a state or municipal agency of which she is a member, by which she is employed, or for which she is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016). Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, the prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Upon receiving a hardship exception, the public official must also “[f]ollow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14-5(e)(1)(iii). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing herself before an agency of which she is a member. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by the Petitioner herein justify a finding of hardship to permit her to appear before the Board. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered some of the following factors in cases involving real property: whether the subject property involved the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to her public office or was recently acquired; whether the relief sought involved a new commercial venture or an existing business; and whether the matter involved a significant economic impact. The Ethics Commission may consider other factors and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions to public officials who sought to appear before their own boards regarding their personal residence or property purchased to be used as their personal residence. In Advisory Opinion 2014-26, for example, the Ethics Commission considered whether a member of the Barrington Zoning Board of Review could appear before his own board to request a dimensional variance to construct a second-story dormer on his personal residence. There, the Commission granted a hardship exception based on the petitioner’s representations that the dimensional variance sought involved his principal residence; his ownership of the subject property significantly predated his public office; and the relief sought was personal and not connected to any commercial objective. See also A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member who needed a dimensional variance to build a storage shed at her personal residence that she acquired prior to her appointment to the Board); A.O. 2010-32 (granting a hardship exception to a Barrington Zoning Board member who sought a variance to construct a new home on a legal non-conforming lot, given that the property was to be used as his primary residence and was located in the same neighborhood where the petitioner had lived for over nine years, enabling his children to remain at the same school). In contrast, the cases in which the Ethics Commission has declined to grant a hardship exception generally involved primarily commercial ventures, where the petitioner’s ownership did not predate his appointment to public office. See, e.g., A.O. 2006-43 (refusing to apply the hardship exception where property was not the petitioner’s principal place of business or primary residence, but rather a commercial venture that was acquired only a few months before his advisory request, after his appointment to the Planning Board); A.O. 2000-41 (refusing to grant a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract with Sprint Cellular Communications to locate a cellular communications tower on his residential property, because although the subject property involved the petitioner’s principal residence, the proposed commercial venture served only to generate additional income for the petitioner). We do not believe that public officials should be unnecessarily 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. See A.O. 2015-8 (granting a hardship exception to a Woonsocket City Council member so that he could represent himself before the Woonsocket Board of Tax Review, over which he had appointing authority as a member of the City Council, in order to appeal the tangible property tax assessed against a business that he owned). Here, the Petitioner represents that the ownership of her primary residence predates her appointment to the Board by 13 years. Based on the above representations and the review of prior advisory opinions, it is the opinion of the Ethics Commission that the totality of the circumstances warrants application of the hardship exception to section 36-14-5(e)’s prohibitions. Accordingly, the Petitioner may appear, personally or through counsel, before the Board to appeal the tax assessment of her personal residence. Consistent with her understanding, the Petitioner must, however, recuse herself from participating in the Board’s consideration of and voting on her appeal. Notice of recusal shall be filed with the Ethics Commission in compliance 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: § 35-14-5(e) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2014-26 A.O. 2011-34 A.O. 2010-32 A.O. 2006-43 A.O. 2000-41 Keywords: Hardship Exception Property Interest