Advisory Opinion No. 2000-58

Re: John Capone

QUESTION PRESENTED

The petitioner, a Tiverton Board of Tax Assessors member, a municipal elected position, requests an advisory opinion as to whether he may apply for and accept the position of appointed Tax Assessor given that he would appear before the Board of Appeals, the successor to the Board of Tax Assessors, given that the make-up of the successor board will be different.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Tiverton Board of Tax Assessors member, a municipal elected position, may apply for and serve in the position of appointed Tax Assessor given that he would be appointed by the Town Manager and would not be appearing before his former Board. While R.I. Gen. Laws § 36-14-5(e) prohibits a public official from appearing before his former Board, including a Board reconstituted under a different name but with the same membership, for a period of one-year following his or her official severance from that body, here the make-up of the successor entity will differ substantially. Therefore, the petitioner’s appearance before the reconstituted Board of Appeals is not prohibited by the Code of Ethics.

The Tiverton Town Charter was amended in 1999 with certain provision becoming effective on July 1, 2000. Among those changes were replacing an elected Board of Tax Assessors that currently manages the Tax Assessor function with a Board of Appeals, and establishing a new appointive position of Tax Assessor effective July 1, 2000. In Advisory Opinion 99-151, the Commission concluded that a member of the Tiverton Board of Tax Assessors could apply for the appointed position of Tax Assessor since the appointment would be made by the Town Manager, but effectively could not serve in that capacity since he/she would be appearing before his/her former board simply reconstituted as the Board of Appeals with the same membership. The petitioner advises that the circumstances have now changed in that one member of the Board of Tax Assessors has already resigned and another member indicates that he will resign effective November 1, 2000. The petitioner will be the sole remaining member of that Board. He asks given these changed circumstances whether can serve as the appointed Tax Assessor and appear before the new Board of Appeals.

Under the Code of Ethics, a public official or employee may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Law §§ 36-14-5(a) and 7(a). It further provides that, for a period of one year after a person has officially terminated his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by his former agency that is not available to the general public. Pursuant to Commission Regulation 5006, no elected or appointed official may accept any appointment by the body of which he or she is a member, to any position which carries with it any financial benefit or remuneration while a member of the body and for a period of one year after termination of membership on said body, unless the Ethics Commission shall give its approval of such appointment. Regulation 5006 further provides that the Commission shall not grant such approval unless it “is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.”

The Commission concludes that the petitioner, a current member of the Board of Tax Assessors, may seek appointment to the new position of Tax Assessor. Such an appointment, in and of itself, would not run afoul of Regulation 5006 since the Town Administrator, and not the Board of Tax Assessors reconstituted as a Board of Appeals, is the appointing authority for that position. Additionally, Section 5(e) of the Code prohibits a member of the Board of Tax Assessors from appearing before his or her former Board for a period of one-year following his or her official severance from his position on the Board. Although the Board of Appeals would be the individual’s former Board if reconstituted in name and function alone, the membership of the Board will include only one of the same members (who will only continue to sit in such capacity for five months), therefore his appearance before the Board would not violate R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). Under these circumstances the petitioner’s influence over a former board which has been reconstituted with substantially different members would be minimal at best and outside the scope of the revolving door provision. Accordingly, the petitioner may apply for and serve in the position of Tax Assessor.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-7(a)
36-14-5006

Related Advisory Opinions:

99-151
99-104
99-101
99-94
99-76
99-60
98-153
98-98
98-83
97-138
97-125
97-117
97-26
97-27
97-17
96-85
96-79
94-37

Keywords:

Appointing authority
Revolving door