Advisory Opinion No. 95-109

Re: George C. Hibbard

A. QUESTIONS PRESENTED

Whether the Charlestown Town Administrator, who intends to appeal the reevaluations of three parcels of land owned by himself and/or his spouse, may rely on the following process to avoid the substantive involvement of the Tax Assessor, also the petitioner's subordinate, in the appeal applications: (a) the Charlestown Tax Assessor will confine his participation to purely ministerial acts, and (b) the Commission of Tax Assessment Review, a municipal agency which accepts appeals from property owners dissatisfied with the Tax Assessor's determinations, will seek the services of another municipality's Tax Assessor to provide technical assistance to that body during its deliberations concerning the petitioner's appeal applications.

Whether the appeal applications of the Charlestown Town Administrator and his spouse may appear before the Commission of Tax Assessment Review concerning property owned in the Town when said Commission does not come within the Town Administrator's authority.

B. SUMMARY

It is the conclusion of the Rhode Island Ethics Commission that Mr. Hibbard and his spouse may seek the appeal of property reevaluations based on the following representations: (a) the Charlestown Tax Assessor, also the petitioner's subordinate, will not review or provide recommendations concerning the appeal applications at any point other than purely ministerial activities, and (b) the Commission of Tax Assessment Review seeks the services of another municipality's Tax Assessor to provide technical assistance to that body during its deliberations concerning the petitioner's appeal applications. The appeal applications of the petitioner and his spouse may appear before the Commission on Tax Assessment Review based on the fact that the petitioner exercises no authority over that body. Our conclusion is based on previous Commission advisory opinions and General Commission Advisory No. 11 which allowed a public official to appear before an agency with which he or she was associated as a member, appointing authority, or jurisdictional authority when no other reasonable alternative exists to protect a vested property interest.

C. DISCUSSION

1. Facts

George C. Hibbard, the Charlestown Town Administrator, requests an advisory opinion as to whether he and his spouse may appeal the reevaluations of their property when said appeals involve the following: (a) filing an application with the Tax Assessor, the petitioner's subordinate, and (b) filing an additional application with the Charlestown Commission of Tax Assessment Review, a body which relies on the technical assistance ordinarily provided by the Tax Assessor. Mr. Hibbard advises that as the Town Administrator of Charlestown, he holds a full-time, salaried position to which he was appointed by the members of the Town Council in June 1992. He further advises that as the Town Administrator, he is the Town's chief executive officer, and that the Town's nine department heads are subordinate to him. The Town Council appoints department heads based on the petitioner's recommendations when vacancies occur. Pursuant to the Charlestown Town Charter, the petitioner appoints other municipal personnel. He also serves as the head of the Town's Finance Department which includes the Tax Assessor, the Tax Collector, and Treasurer.

In addition, the petitioner advises that in 1994 real estate within Charlestown was reevaluated as required by law. Kenneth J. Swain, the Tax Assessor and the petitioner's subordinate, was responsible for the reevaluation and relied on the services of an appraisal firm under contract with the Town.

Mr. Hibbard and his spouse own three parcels of real estate in Charlestown, one lot of land includes their home, one lot includes a small cottage owned by his spouse, and the third lot, owned by the petitioner, is vacant. The petitioner advises that he and his spouse believe the newly assessed values for the parcels are excessive, and they wish to appeal said reevaluations.

According to the petitioner and pursuant to the Charlestown Town Charter and Code, the appeals process first involves the filing of an application with the Tax Assessor by November 30, 1995. If the petitioner is not satisfied with the Tax Assessor's response, the reevaluation may be further appealed to the Commission on Tax Assessment Review, a three member panel of town residents appointed by the Town Council. The petitioner advises that said appointments are made without staff recommendation or influence. If a property owner finds that the determination made by the Commission of Tax Assessment Review is unsatisfactory, a further appeal may be made to Superior Court.

Mr. Hibbard advises that he and his spouse plan to appeal the reevaluations. Accordingly, they plan to file an appeal ministerially with the Tax Assessor so as to qualify for an appeal before the Commission of Tax Assessment Review. The petitioner advises that the Tax Assessor will not act on the application in light of the fact that the latter is the petitioner's subordinate. After the appeal is submitted to the Tax Assessor, ten days will be allowed to pass without any action on the application. As provided by state law, ten days of inaction on an application to the Tax Assessor is understood to be a rejection of the appeal at which time the property owner may make a further appeal to the Commission on Tax Assessment Review.

In light of the above representations, the petitioner requests an advisory opinion as to the propriety of the following: (a) allowing the Tax Assessor to participate in processing the appeal applications when said processing involves only ministerial activities so as to allow the petitioner's appeal to proceed to the Commission of Tax Assessment Review; (b) having said Commission rely on technical assistance from another municipality's Tax Assessor in its discussions and deliberations concerning the appeal; and (c) allowing the appeal to proceed before the Commission of Tax Assessment and Review when the petitioner has no authority to appoint its members or to provide recommendations.

2. Analysis

At issue in this advisory opinion request is whether the Charlestown Town Administrator and his spouse may file appeal applications concerning their real property when said appeals involve filing an application with the Tax Assessor, the petitioner's subordinate, and filing an additional application with the Charlestown Commission of Tax Assessment Review, a body to which the Tax Assessor provides technical assistance. Relevant provisions of the Code of Ethics include the following:

R.I. Gen. Laws § 36-14-5(a). No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities as prescribed in the laws of this state, as defined in section 36-14-7.

R.I. Gen. Laws § 36-14-5(d). No person subject to this Code of Ethics shall use in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for him or herself or any person within his or her family or business associate or any business by which the person is employed or which the person represents.

(e) No person subject to this Code of Ethics shall:

(1) Represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed. In cases of hardship the Ethics Commission may permit such representation upon application by the official and provided that he or she shall first:

(a) advise the state or municipal agency in writing of the existence and the nature of his or her interest in the matter at issue, and

(b) recuse him or herself from voting on or otherwise participating in the agency's consideration and disposition of the matter at issue, and

(c) follow any other recommendations the Ethics Commission may make to avoid any appearance of impropriety in the matter.

(2) Represent any other person before any state or municipal agency of which he or she is a member or by which he or she is employed.

(3) Act as an expert witness before any state or municipal agency of which he or she is a member or by which he or she is employed with respect to any matter the agency's disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him, or herself, or any person within his or her family or any business associate of the person or any business by which the person is employed or which the person represents.

(4) Shall engage in any of the activities prohibited by subsection (e)(l), (e)(2) or (e)(3) of this section for a period of one year after he or she has officially severed his or her position with said state or municipal agency; provided, however, that this prohibition shall not pertain to a matter of public record in a court of law.

This Commission has previously ruled that members of municipal bodies may be required to appear before or submit applications to such bodies when such appearance or application is the only legal course of action available to protect a vested property interest and when no other reasonable alternative exists. Under such circumstances, the petitioners have been advised to exercise notice and recusal when matters in which they have an interest appear before their agencies. See Advisory Opinions 94-38, 89-71, 89-52, 89-50, 88-18, 88-02, 86-68, 86-67, and 80-02.(1)

In the advisory opinion request presently before the Commission, the Charlestown Town Administrator and his spouse must file applications to appeal reevaluations of their real property. Ordinarily, a property owner would file said application with the Tax Assessor who, in this instant, is the petitioner's subordinate. In General Commission Advisory No. 11 ("Activities of a State or Municipal Official in Connection with Decisions Concerning His or Her Property, or the Property of Certain Relatives"), the Commission addressed situations in which a public official appears before or submits an application concerning a vested property interest to subordinates who represent "the sole authority customarily utilized...and, that the notice and recusal sections of the law may be insufficient to address these issues." Under these circumstances, the Commission concluded that "those specific activities should be assigned to another responsible person within the municipality as may be designated by the appointing or jurisdictional authority such as the town council. Alternatively, individuals from other municipalities may be called upon." See General Commission Advisory No. 11.

In Mr. Hibbard's advisory opinion request, he offers a plan consistent with previous Commission recommendations in that the Tax Assessor would not play a substantive role in the appeal process. Under the suggested scenario, the Tax Assessor would carry out the purely ministerial act of accepting the appeal applications. He would not review the application or make any recommendations concerning the merits of said application. After ten days, the fact that the Tax Assessor has not acted on the applications would be tantamount to a rejection of the applications. At that juncture, the petitioner has the option of filing further appeals with the Commission of Tax Assessment Review. The petitioner also requests guidance as to the propriety of obtaining the services of a Tax Assessor from another municipality to provide technical assistance to the Commission of Tax Assessment Review during its deliberations concerning the parcels owned by Mr. Hibbard and his spouse. Finally, Mr. Hibbard asks whether the Commission of Tax Assessment Review may consider his appeal applications in view of the fact that he exercises no authority over that body.

It is the conclusion of the Rhode Island Ethics Commission that Mr. Hibbard and his spouse may seek an appeal of property reevaluations in the municipality in which he serves as Town Administrator based on the following representations: (a) the Charlestown Tax Assessor, the petitioner's subordinate, will not review or provide recommendations concerning the appeal applications, confining his participation to only ministerial activities; and (b) the Commission of Tax Assessment Review will seek the services of another municipality's Tax Assessor to provide technical assistance to that body during its deliberations concerning the petitioner's applications. In addition, the appeal applications of the petitioner and his spouse may appear before the Commission on Tax Assessment Review based on the fact that the petitioner exercises no authority over that body. Our conclusion is based on previous Commission advisory opinions and General Commission Advisory No. 11 which permitted a public official to appear before an agency with which he or she was associated as a member, appointing authority, or jurisdictional authority when no other reasonable alternative existed to protect a vested property interest.

Footnotes

(1)In Advisory Opinions 94-19, 86-40, 86-3, and 82-72, the Commission ruled that members of municipal agencies have matters before the same agencies involving personal property interests may not personally appear before those agencies, but must rely on the representations of an attorney or another representative. However, in Advisory Opinion 91-42, a member of the Smithfield Planning Board was not permitted to have a private business interest to appear before that agency.

Keywords

Property Interest

Recusal

Delegation

Ministerial