Advisory Opinion No. 2001-25

Re: Joseph Schmeltz

QUESTION PRESENTED

The petitioner, the Chair of the Burrillville Assessment Review Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Board’s consideration of an appeal, despite the fact that he previously appraised the applicant’s property, given that recusals have left the Board without a quorum.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that one or more members of the Burrillville Assessment Review Board, municipal appointed positions, may participate and vote on certain matters pursuant to the Rule of Necessity exception where his participation is necessary to establish a quorum. However, the Board member selected to participate should be the individual whose interest would be affected least by his participation in such matters. Here, the petitioner would be affected to a lesser extent than a Board member who has an ongoing business relationship with the applicant.

The petitioner advises that the Town of Burrillville Board of Assessment Review is considering a property owner’s appeal regarding an open space taxation issue. He recused himself from the Board’s consideration of the matter since, in his private capacity as a real estate appraiser, he appraised the subject property at the time of its purchase in 1999. He indicates that another Board member, Michael Sterns, also recused himself from hearing the appeal, based upon both a personal friendship and business association with the applicant. He represents that Mr. Sterns is privately employed as a real estate agent and frequently is involved in real estate transactions with the applicant. These recusals have left the three member Board without a quorum to hear the appeal. The petitioner further advises that the appeal does not involve the assessed value of the subject property, but relates only to open space issues.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), a public official also is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate, or any business in which the official is employed or which the official represents. Finally, Section 5(f) provides that a public official should recuse from participation where a business associate appears before the state or municipal agency of which he is a member. The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3).

This Commission has recognized a “Rule of Necessity” exception in a narrow range of situations where recusals would inhibit governmental processes, such as where the majority of a public body’s members must recuse themselves and the resulting failure of the quorum renders the entity unable to act. See, e.g., A.O. 92-1 and A.O. 98-43. In past advisory opinions, the Commission has found circumstances warranting its application where the matter at issue affected the municipality as a whole and no official action could otherwise be taken. See A.O. 97-55 (where denial would prevent the Westerly Town Council from approving the Town budget); and, A.O. 93-31 (where exception needed for the Town of Richmond to accept new streets into its public roads system). The Commission also granted an exception where the inability of the Workers Compensation Court’s Medical Advisory Board to select a preferred provider network would affect health care options for all injured workers. A.O. 96-65.

In this matter, if the Assessment Review Board were not able to achieve a quorum because of recusals required by the Code of Ethics, the Rule of Necessity would allow the participation of one or more Board members, notwithstanding their conflicts of interest, so as to achieve a quorum. However, consistent with the Rule of Necessity as interpreted by this Commission and the courts, the Board member selected to participate should be the individual whose interests would be affected least by his or her participation in the matter. While the petitioner appraised the subject property at the time of its purchase in 1999, he represents that the matter before the Board is an open space taxation issue that does not involve the assessed property value. In contrast, Mr. Sterns’ frequent real estate transactions with the applicant would constitute an ongoing business association with the applicant, thereby triggering the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Based upon the facts presented, presumably the petitioner would be the Board member whose interests would be affected least by his participation. The petitioner should make public disclosure of these facts and the basis upon which he believes he can objectively participate and vote in the matter at issue, all prior to his participation and voting in connection with same.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2000-92

2000-74

99-82

98-127

98-43

97-55

96-65

95-49

93-31

92-1

Keywords:

Recusal

Rule of necessity