Advisory Opinion No. 2007-1 Advisory Opinion No. 2007-1 Re: Robert W. Burns QUESTION PRESENTED: The petitioner, the Deputy Tax Assessor for the City of Pawtucket, a municipal employee position, and a certified residential appraiser, requests an advisory opinion as to whether he may perform real estate appraisals in the City of Pawtucket for lending and refinancing purposes. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Deputy Tax Assessor for the City of Pawtucket, a municipal employee position, and a certified residential appraiser, may not perform real estate appraisals in the City of Pawtucket for lending and refinancing purposes since it is reasonably foreseeable that the petitioner’s private endeavors would interfere with his public duties as Deputy Tax Assessor, which creates not only a substantial conflict of interest with the discharge of his public duties but also may impair his independence of judgment as to those same duties. The petitioner represents that as the Deputy Tax Assessor for the City of Pawtucket (“the City”), he is primarily responsible for assessing the value of automobiles and tangible personal property such as: furniture, fixtures, equipment and inventory of businesses in the City. Additionally, according to his job description which was provided by the petitioner to the Commission staff, other responsibilities include supervising staff in the assessment of real estate and assisting the Tax Assessor in the administration of the Assessor’s office. However, the petitioner represents that the assessment of real property and certification of the tax roll are the responsibilities of the Tax Assessor and the revaluation company hired by the City. The petitioner advises that he is a state certified residential appraiser and would like to appraise real property in the City for lending and refinancing purposes. He represents that his client would be a bank or a mortgage company and not the property owner. The petitioner represents that the appraisals would not be done for tax appeal purposes. The petitioner further represents that the appraisals would not be done during work hours, he would not use public resources and that he would not use his position with the City to solicit customers. Finally, the petitioner states that he believes the issues presented in the instant matter are similar to the facts presented in A.O. 2002-47. Based on the above, the petitioner seeks guidance from the Commission as to whether the Code of Ethics prohibits him from performing real estate appraisals in the City given his position as the Deputy Tax Assessor. The Code of Ethics provides that the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). A public official has reason to believe or expect that such a conflict of interest exists when it is "reasonably foreseeable." The probability of a conflict must be greater than "conceivably," but it need not be certain to occur. See Commission Regulation 36-14-7001. The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Here, the petitioner wishes to perform real estate appraisals in his private employment which would involve properties within his official jurisdiction as the Deputy Tax Assessor. The petitioner asserts that since he does not assess value to real property located in the City nor does he certify the tax roll, there would be no substantial conflict of interest with the proper discharge of his duties in the public interest. However, the petitioner, in his capacity as Deputy Tax Assessor, not only supervises those who participate in the assessment of real estate, he also has special access to public resources which could assist him in his private endeavors, resulting in a financial benefit to the petitioner or any business which he represents. Furthermore, although the petitioner represents that his private work would be limited to appraisals for lending and/or refinancing purposes, nothing would prevent a property owner from using an appraisal rendered by the petitioner for tax appeal purposes. The petitioner asserts that A.O. 2002-47 is similar to the facts presented herein. In that opinion, the Commission opined that a field clerk employed by the Town of Burrillville Tax Assessor’s Office could accept private employment to perform appraisals in the Town of Burrillville for lending and refinancing purposes provided that he performed such work on his own time, without the use of and/or special access to public resources and that he did not use his position to recruit potential clients. See A.O. 2002-47. Notably, the petitioner in A.O. 2002-47 expressly represented that he had no discretionary or decision-making authority as to the Town’s tax assessments. Conversely, the petitioner in the instant matter is the Deputy Tax Assessor who has supervisory responsibilities over staff who perform real estate assessments in the City. Moreover, unlike the petitioner in A.O. 2002-47, the petitioner here would have access to public resources and is in a position of authority to potentially use those resources for private gain. In previous advisory opinions, the Commission has given its approval for municipal employees to accept private employment similar to their public duties, provided that: (1) they performed such private work outside of their official jurisdiction; (2) performed all work on their own time without the use of public resources; (3) did not use their public positions to recruit potential clients; and (4) did not disclose any confidential information they obtained in the course of their public employment. See A.O. 2006-17 (opining that a Lieutenant on the East Providence Police Department could apply for a private investigator’s license and operate said business in the City of East Providence, provided that: (1) he had no involvement with matters subject to the East Providence Police Department’s official jurisdiction; (2) he did not disclose any confidential information he obtained in the course of his employment with the Police Department; (3) he performed such work on his own time and without the use of public resources, including law enforcement databases; (4) he did not use his position as a police officer to obtain clients or private work; and (5) he did not accept any cases or perform any work within the City of East Providence for as long as he was employed by the East Providence Police Department); A.O. 2001-27 (finding that a Captain in the Cranston Fire Department could accept private employment with an architect to review plans for submission to another municipality for fire code compliance, provided that: (1) he had no involvement with plans subject to his official jurisdiction; (2) he performed such work on his own time and without the use of public resources; and (3) he did not use his position within the Fire Department to recruit potential clients); A.O. 2000-27 (opining that the Newport Tax Assessor could accept part-time employment with a local appraisal company and/or assist private parties with appeals of property valuations in other communities, provided that: (1) he has no involvement with properties located within his official jurisdiction; (2) he performed such work on his own time and without the use of public resources; and (3) he did not use his position as Tax Assessor to recruit potential clients). Finally, when enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the avoidance of appearances of impropriety. Here, to have a Deputy Tax Assessor perform real estate appraisals in the same municipality in which he has control and authority over not only those who perform real estate assessments but also over specific records maintained by the Tax Assessor’s Office, at the very least, creates an appearance of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Accordingly, the Commission opines that the petitioner, the Deputy Tax Assessor for the City of Pawtucket, may not perform real estate appraisals in the City of Pawtucket for lending and refinancing purposes since it is reasonably foreseeable that the petitioner’s private endeavors would interfere with his public duties as Deputy Tax Assessor, which creates not only a substantial conflict of interest with the discharge of his public duties but also may impair his independence of judgment as to those same duties. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2006-17 2002-47 2001-27 2000-27 96-25 Keywords: Private employment