Advisory Opinion No. 2010-59 Rhode Island Ethics Commission Advisory Opinion No. 2010-59 Re: Robert Coulter QUESTION PRESENTED The Petitioner, a member of the Tiverton Town Council, a municipal elected position, requests an advisory opinion regarding his ability to take part in Town Council discussions and voting relative to litigation, taxation and personnel issues, given the Petitioner's prior involvement in tax appeals and litigation against the Town and certain of its officials. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner may, in accordance with the advice set forth below, take part in Town Council discussions and voting relative to litigation, taxation and personnel issues, notwithstanding his prior involvement in tax appeals and litigation against the Town and certain of its officials. The Petitioner states that he and his spouse own a residence in Tiverton as tenants by the entirety. As a result of what the Petitioner describes as illegal taxes levied by the Town of Tiverton in 2008 and again in 2010, the Petitioner and his spouse became involved in three distinct tax appeal actions challenging the legality of each tax levy. Subsequent to the filing of all three tax appeals, the Petitioner was elected to the Tiverton Town Council. Following his election, he and his spouse took actions to withdraw themselves from, or dismiss, all three tax appeals. The Petitioner's descriptions of each appeal, as well as the efforts taken to withdraw or dismiss each appeal, are detailed below. In what will be referred to as "Petitioner's 2008 Tax Appeal," the Petitioner states that in 2008 the Town approved a tax levy that is, according to the Petitioner, illegal. On that basis, the Petitioner and his spouse filed a tax appeal, pursuant to R.I. Gen. Laws § 44-5-26, with the Tiverton Tax Assessor and then, because they were still aggrieved following the Assessor's decision, with the Tiverton Board of Assessment Review. After obtaining no relief with the Board of Assessment Review, the Petitioner's spouse (but not the Petitioner) filed a tax appeal in the Newport County Superior Court seeking a declaration that the Town violated the law and demanding a refund of the allegedly illegal portion of the taxes levied against her residence. The Petitioner notes that his spouse is the sole plaintiff in the suit and the Tiverton Tax Assessor is the sole defendant. Following his election to the Town Council in November 2010, both the Petitioner and his spouse filed notices of withdrawal of their appeals with the Tiverton Tax Assessor, and the Petitioner's spouse has sought to file a joint stipulation or motion to dismiss the Superior Court appeal. According to the Petitioner, the dismissal will be with prejudice and they will have given up whatever legal rights they had under section 44-5-26 to challenge the 2008 tax levy as to their residence. In what will be referred to as "Petitioner's 2010 Tax Appeal," the Petitioner contends that in 2010 the Town once again approved an illegal tax levy. On that basis, pursuant to section 44-5-26, the Petitioner and his spouse together filed an appeal of the Town's 2010 tax assessment of their residence with the Tiverton Tax Assessor. Following his election to the Town Council, the Petitioner and his spouse both filed notices of withdrawal of this appeal with the Tiverton Tax Assessor. According to the Petitioner, any attempt to reinstate the appeal would be untimely under the statute. Finally, in what will be referred to as "Taxpayers' 2010 Lawsuit," the Petitioner's spouse (but not the Petitioner) and eighteen (18) other plaintiff taxpayers directly commenced a lawsuit in the Newport County Superior Court, pursuant to section 44-5-27, to challenge the allegedly illegal 2010 tax levy. In this suit both the Tiverton Tax Assessor and the Tiverton Town Council were named as defendants. Following the Petitioner's election to the Town Council, his spouse filed a voluntary dismissal stipulation in the Superior Court to remove herself from suit. The suit remains active as to the other eighteen (18) plaintiffs. Although the Petitioner states that he understands that he must recuse from any residual Town Council actions relating to the withdrawal or dismissal of himself or his spouse from the above three actions, the Petitioner asks whether the Code of Ethics bars him from participating in the Town Council's discussions and voting relative to: (1) issues surrounding the ongoing Taxpayers' 2010 Lawsuit pending in the Superior Court; (2) adoption of a charter amendment, ordinance or policy aimed at curing the allegedly illegal tax levy procedure; and (3) evaluating the performance or budget allocations of the Tax Assessor or Town Solicitor. Under the Code of Ethics, a public official 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. R.I. Gen. Laws § 36-14-5(a). A public official has a substantial conflict of interest if he has reason to believe or expect that he, a family member, employer or business associate, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. Section 36-14-7(a). Also, he may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, employer or business associate. Section 36-14-5(d). Under the Commission's regulation on nepotism, a public official may not participate in any matter as part of his public duties if a member of his family is a party to or participant in such matter, or will be financially impacted or obtain an employment advantage. Regulation 36-14-5004(b)(1). Finally, a public official may not disclose, for pecuniary gain, confidential information acquired in the course of and by reason of his official duties. Section 36-14-5(c). In Advisory Opinion 95-37, the Ethics Commission addressed a similar fact pattern involving a town council member with pending litigation against her municipality. There, a member of the Westerly Town Council asked whether she could participate in the Town Council's discussions and voting relative to the Town budget, including the legal services budget, given the fact that she was a plaintiff against the Town in a pending Superior Court appeal of her real estate assessment. The Commission opined that the Council member would not violate the Code by participating in decisions relative to the budget, including the legal services budget, but she would be required to recuse from participation in any Council matter that affected her pending litigation. Compare A.O. 99-31 (finding that a Smithfield Town Councilor could not participate in the Council’s consideration of a lawsuit filed by residents of a subdivision where the Councilor previously had been part of the suit, because any action by the Council may have a financial impact upon him as a current resident of the subdivision). As in these prior advisory opinions, in the instant matter the Petitioner is prohibited by the Code of Ethics from participating in any Town Council discussions or decisions that financially impact him or his spouse, including discussions and decisions involving any litigation in which the Petitioner or his spouse is currently a party. The Petitioner represents that he and his spouse have taken certain steps to withdraw from, or dismiss, all three cases in which one or both were involved. The Petitioner asserts that upon such withdrawal or dismissal, applicable statutes of limitations and other statutory requirements will apply to prohibit them from reinstating claims for relief, at least as to the individual tax appeals. However, the Petitioner notes that even after his spouse's withdrawal as a party plaintiff from the Taxpayers' 2010 Lawsuit, the case will continue with the remaining eighteen (18) plaintiffs and could result in a declaratory ruling from the Superior Court concerning the legality of the 2010 tax levy that would financially impact all Tiverton property owners, including the Petitioner and his spouse. Such a situation, though, would clearly fall within the application of the Code's "class exception," which holds that there will be no prohibited conflict of interest if the financial interest that flows to the public official or his family member accrues only by reason of his or her membership in a business, profession, occupation or group, and provided that any financial impact is felt to no greater extent than that experienced by any similarly situated member of the group. Section 36-14-7(b). See A.O. 2009-45 (under the class exception of section 7(b), the Chairman of the Lime Rock Fire District Commission may participate in discussion and vote on a proposed fire district tax rate that will similarly impact all ratepayers, notwithstanding that he is a resident of the fire district subject to the tax); A.O. 2002-27 (Exeter Town Council member may participate in Council's vote to enact a tax freeze ordinance for residents aged 65 and over, because he would be affected to no greater or lesser extent than all the other members of this significant and definable class of elderly taxpayers). Accordingly, provided that the Petitioner and his spouse are no longer parties to, or participants in, the Taxpayers' 2010 Lawsuit, the Code of Ethics does not prohibit the Petitioner from participating in Town Council discussions and voting relative to that matter. The class exception would similarly apply to any Town Council matters involving the proper interpretation, going forward, of state laws as to allowable municipal tax levies. In summary, based upon the Petitioner's representations and our above analyses, it is the opinion of the Rhode Island Ethics Commission that, upon the actual withdrawal or dismissal by the Petitioner and his spouse as to the three subject tax appeals, the Petitioner may participate in the Town Council's discussions and voting relative to: (1) issues surrounding the ongoing Taxpayers' 2010 Lawsuit pending in the Superior Court; (2) adoption of a charter amendment, ordinance or policy aimed at curing the allegedly illegal tax levy procedure; and (3) evaluating the performance or budget allocations of the Tax Assessor or Town Solicitor. The Petitioner must, however, recuse from any residual Town Council matters relating to the withdrawal or dismissal of himself and his spouse from above three actions. Code Citations: 36-14-5(a) 36-14-5(c) 36-14-5(d) 36-14-7(a) 36-14-7(b) Regulation 36-14-5004(b)(1) Related Advisory Opinions: 2009-45 2002-27 99-31 95-37 Keywords: Litigation Recusal