Opinion

Opinion  EC-COI-84-14

Date: 01/30/1984
Organization: State Ethics Commission

A former municipal deputy assessor may, on behalf of a property owner, appraise the value of property and act on the owner’s behalf to contest an assessment without violating §§ 18 and 23(c) of the conflict of interest law because a prior appraisal he conducted as a deputy assessor is a different particular matter. 

 

Table of Contents

Facts

During the period of 1972 to 1974, you were a paid deputy assessor for the Town of ABC (Town). While serving in that position, you appraised the DEF property, and made recommendations to the Town Board of Assessors regarding the fair market value of that property. Following that period, you performed no other services for the Town in relation to this property. Subsequently, there were three additions to the property: one completed in late spring of 1975 which added 25,000 square feet; a two-story addition in 1976, which added 18,000 square feet; and a third small addition in 1978, along with a beautification project in 1980. These additions doubled the size of the property. The Town revalued the property for fiscal year 1982, effective as of January 1, 1981.

You were hired by the owner of the DEF in October 1982 to appraise DEF as of January 1,1981 for fiscal year 1982 to contest the 1981 real estate assessment by the ABC Board of Assessors.

Question

Does G.L. c. 268A permit you to receive compensation from the owner of the DEF or act as his agent in relation to his challenge to the 1981 real estate assessment by the ABC Board of Assessors?

Answer

Yes, subject to certain conditions.

Discussion

During the period in which you served as a deputy assessor for the Town, you were a municipal employee for the purposes of G.L. c. 268A, and, upon leaving that position, you became a former municipal employee.[1] As a former municipal employee, two sections of G.L. c. 268A are relevant to your situation:

1. Section 18

This section prohibits you from receiving compensation or acting as agent or attorney for a non-Town party in relation to any particular matter[2] in which you participated[3] while serving as a municipal employee. G.L. c. 268A, § 18(a).[4] 

The assessment determination for DEF is a particular matter under § 1(k), and, by appraising that property during the period of February 1972 to October 1974, you participated in that determination. Therefore, you would violate § 18(a) if you were paid by DEF or acted as its agent or attorney in relation to the assessment determination in which you participated while employed as a deputy assessor.

The key issue is whether the 1981 assessment determination which DEF now contests and for which you now wish to receive compensation is the same "particular matter" in which you previously participated as deputy assessor. In general, each assessment determination is regarded as a different particular matter, because the process by which the Board of Assessors makes its determination may take into account different considerations. This is particularly true with respect to the 1981 assessment of DEF in view of the substantial addition to the size and value of the property since your assessment recommendation as deputy assessor. The Commission therefore concludes that, while you may be familiar with the property, the 1981 assessment determination is a different particular matter from the earlier proceeding in which you participated. This is not to say that the Commission would regard every assessment determination as a separate particular matter. In reaching its conclusion, the Commission may consider such factors as the extent to which the particular matters involve the same facts and issues, the same or related parties and the time elapsed. For example, in EC-COI-80-108 the Commission advised a former state employee that she could not represent private clients to pursue claims integrally related if not identical to claims which she previously investigated as a state employee. See, also EC-COI-79- 36; 5 C.F.R. § 737.5(4).[5] The facts which you present are distinguishable from these precedents.

2. Section 23

Two provisions of the standards of conduct under G. L. c. 268A, § 23 apply to you as a former municipal employee. These provisions prohibit a former municipal employee from accepting employment or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority and from, in fact, improperly disclosing such materials[6] or using such information to further his personal interests.

These restrictions affirm the principle that while serving as a municipal employee, an individual owes his loyalty to the municipality and may not take advantage of, or misuse confidential information acquired in that role. This principle is particularly applicable to your situation. In the course of your working for the owner of DEF, you must refrain from disclosing confidential information which was used as the basis of your earlier recommendation.

 

End Of Decision

[1] In view of the conclusions reached in this opinion, it is unnecessary to review the application of the provisions of G.L. c. 268A as they apply to you as a "special municipal employee."

[2] For the purposes of G.L. c. 268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court. . . G.L. c. 268A, § 1(k),

[3] For the purposes of G.L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state, employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

[4] Section 18(b) establishes other limitations on your activities for a one-year period following your termination of services a, a municipal employee. In view of the time period which has elapsed since your deputy assessor services, this section no longer applies to you.

[5] CFR § 737.5(4), a federal regulation adopted pursuant to the federal counterpart to G.L. c. 268A, § 18. [18 U.S. § 207] provides as follows:

(4) The same particular matter must be involved. The requirement of a "particular matter involving a specific party" applies both at the time that the Government employee acts in an official capacity and at the time in question after Government service. The same particular matter may continue in another form or in part. In determining whether two particular matters are the same, the agency should consider the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest.

[6] These materials are defined as "materials or data within the exemptions to the definition of public records as defined by [G.L. c. 4, § 7].

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