Advisory Opinion No. 2020-18 Rhode Island Ethics Commission Advisory Opinion No. 2020-18 Approved: April 7, 2020 Re: Randall White QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before the Jamestown Tax Assessment Board of Review regarding the appeal of the tax assessment of his personal residence. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, may appear before the Jamestown Tax Assessment Board of Review regarding the appeal of the tax assessment of his personal residence, based upon a finding that the unique facts as represented justify application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e). The Petitioner was elected to a two-year term on the Jamestown Town Council (“Town Council”) in November of 2018. Prior to his retirement in 2014, the Petitioner served for 32 years as an Assistant Attorney General and criminal prosecutor for the Rhode Island Department of Attorney General. The Petitioner states that he and his wife have resided in their present home in Jamestown for approximately 38 years. He further states that, although the home is owned by his wife and his wife’s brother, who lives in Maryland, the Petitioner and his wife pay all of the taxes on the home. The Petitioner represents that Vision Government Solutions (“VGS”) conducted a revaluation of the home in 2019, which the Petitioner and his wife appealed by meeting with a VGS representative, resulting in a modest reduction in the home’s assessment. The Petitioner explains that, in December of 2019, he and his wife filed an Application for Abatement of Property Tax (“appeal”) to the Jamestown Tax Assessor (“Tax Assessor”).[1] He further explains that, because the Tax Assessor did not review the appeal within 45 days of receiving it, the appeal is now expected to be scheduled for hearing before the Jamestown Board of Tax Assessment Review (“Board”) on or before April 27, 2020. He adds that he and his wife attached a letter to the appeal, signed by both of them and outlining their position on the revaluation, that the Tax Assessor said will be forwarded to the Board as part of the appeal. The Petitioner states that the Board is comprised of three members and one alternate member (collectively, the “members”), each of whom was appointed to a three-year term by the Town Council. Cognizant of the Code of Ethics’ prohibition on appearing before the Board because he is a member of its appointing authority, the Town Council, the Petitioner seeks a hardship exception to allow him to seek relief from what he considers to be an excessive tax upon his personal residence, and states that he is willing to follow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter. The Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed, or for which he 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) (“Commission Regulation 1.1.4”). Pursuant to Commission Regulation 1.1.4(A)(1)(a), a person will “represent him or herself before a state or municipal agency” if he or she “participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in his or her own favor.” Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, these 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 follow 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 himself before an agency of which he is the appointing authority. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by him herein justify a finding of hardship to permit him to appear before the Board. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered 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 his 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 also 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. See, e.g., A.O. 2019-57 (granting a hardship exception to a Bristol Board of Tax Assessment Review member, permitting her to appear before her own board to appeal the tax assessment of her personal residence, provided that she recuse from participating in the board’s consideration of and voting on her appeal). Compare A.O. 2006-43 (declining 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 the advisory request following his appointment to the Planning Board). The Ethics Commission has also granted hardship exceptions to municipal council members, permitting them to appear before a municipal entity over which they had appointing authority. However, in order to lessen any appearance of impropriety, the Commission instructed those council members to recuse from the council’s appointment or reappointment of any person to that municipal entity until after the next election cycle for their seat on the council. For example, in Advisory Opinion 2015-8, the Ethics Commission granted a hardship exception to a Woonsocket City Council member and permitted him to appear before the Woonsocket Board of Tax Review in order to appeal the tangible property tax assessed against a business that he owned. To lessen any appearance of impropriety, the Ethics Commission instructed the petitioner to recuse 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. See also A.O. 2014-4 (granting a hardship exception to a Portsmouth Town Council member, permitting him to appear before the Portsmouth Zoning Board of Review over which the Town Council had appointing authority, relative to the construction of a deck for his personal residence, provided that he recuse 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 their residence or 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 Town Council to appeal a tax assessment on the residence at which he has lived for approximately 38 years, which predates his election to the Town Council by more than 36 years. In consideration of the facts as represented, and consistent with the applicable provisions of the Code of Ethics and past advisory opinions in this area, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear before the Jamestown Board of Tax Assessment Review to appeal the property tax assessed against his residence, provided that he recuse from the Town Council’s appointment or reappointment of any persons to the Board until after the election cycle for his Town Council seat following the resolution of his tax appeal. Notice of recusal shall be filed consistent with the provisions of 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(e) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2019-57 A.O. 2015-8 A.O. 2014-4 A.O. 2006-43 Keywords: Hardship [1] The Town of Jamestown allows the following individuals to file an Application for Abatement of Property Tax: (1) the assessed or subsequent (acquiring title after December 31) owner of the property; (2) the owner’s administrator or executor; (3) a tenant paying rent who is obligated to pay more than one-half of the tax; (4) a person owning or having an interest in or possession of the property; or (5) a mortgagee if the assessed owner has not applied. www.jamestownri.gov (last accessed March 25, 2020).