Date: | 03/27/1996 |
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Organization: | State Ethics Commission |
A member of a municipal board of assessors may conduct private appraisals of property in the town.
Date: | 03/27/1996 |
---|---|
Organization: | State Ethics Commission |
A member of a municipal board of assessors may conduct private appraisals of property in the town.
A Town Board of Assessors is made up of five elected, uncompensated members. Certain members of the Board are licensed real estate appraisers.
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Does the conflict of interest law allow a Board member, who is also a licensed real estate appraiser, to be paid to perform appraisals of properties located in Town?
Yes, subject to the limitations set forth below.
Board members are municipal employees under the conflict of interest law.[1] The following provisions of c. 268A are relevant to the question.
Section 17
Section 17(a) prohibits municipal employees from receiving compensation[2] from anyone, other than their municipality, in connection with a particular matter[3] in which the municipality is a party or has a direct and substantial interest. In addition, s.17(c) prohibits municipal employees from acting as agents[4] for anyone other than the municipality in any claim against the municipality or for anyone in connection with any particular matter in which the municipality has a direct and substantial interest. This section is based on the principle that "one cannot serve two masters." A member of the Board who is also a private appraiser would be restricted from participating or receiving compensation in certain particular matters.
For example, such a member would not be allowed, under s.17(a), to be paid by a private party to prepare materials such as affidavits or valuation forms that would be submitted to the Board. One could not be paid to perform an appraisal for the express purpose of seeking an abatement. If one were to perform such types of work for no pay, one would still not be able to act as an agent for a private party before any Town boards or officials. Signing or submitting forms on behalf of a private party or appearing personally before Town officials would constitute acting as an agent. Representing any private party in any matter relating to a property assessment such as a challenge to the assessment or an abatement application would be prohibited.
Additionally, if the Town were interested in leasing or purchasing properties, it is conceivable that value as established by an appraisal would be of direct and substantial interest to the Town. A Board member could not be paid by or represent a private party in connection with such an appraisal.[5] Similarly, a Board member could not conduct an appraisal for a private party in an eminent domain proceeding by the Town or in connection with a tax taking or sale.
Section 17 would not, however, prohibit a Board member from performing appraisals conducted only for private parties and not related to any official action by the Town. For example, s.17 would not bar a Board member from conducting an appraisal in connection with private financing.
Section 19
In pertinent part, s.19 provides that a municipal employee may not participate in any particular matter in which he, an immediate family member[6] or partner, a business organization in which he is an officer, director, trustee, partner, or employee has a financial interest. The definition of participation includes not only voting but also formal and informal lobbying of colleagues, reviewing and discussing, giving advice and making recommendations on particular matters. EC-COI-92-90. The financial interest may be of any size and may be either positive or negative so long as it is direct and immediate or reasonably foreseeable. EC-COI-92-24; 84-96; 84-98. For example, a Board member could not participate in Board matters concerning his own property or property of his immediate family.[7]
Section 23
Certain provisions of s.23, which specifies standards of conduct that apply to all public officials, are pertinent. Under s.23(b)(2), a public employee may not use his official position to secure unwarranted privileges or exemptions of substantial value[8] for himself or others. Section 23(b)(3) prohibits a public employee from engaging in any conduct which gives a reasonable basis for the impression that any person or entity can improperly influence or unduly enjoy his favor in the performance of his duties, or that he is likely to act or fail to act as a result of kinship, rank, or position of any person. To dispel such an impression, the public employee must make a written public disclosure in advance of participating in the matter of all the facts and circumstances. EC-COI-91-3; 89-19. An elected official must file such a disclosure with the municipal clerk. In addition, if an appearance of a conflict of interest arises in a public meeting, officials are advised to make a verbal disclosure to be included in the meeting minutes. Commission Fact Sheet, Avoiding "Appearances" of Conflicts of Interests, Standards of Conduct (Section 23).
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Finally, s.23(c) prohibits a public employee from engaging in any business or professional activity that will require him to disclose confidential information which he has gained by reason of his official position or authority and from improperly disclosing material or data which is exempt from the definition of a public record.[9] EC-COI-91-1.
Under s.23(b)(2), a Board member may not use his title as an Assessor, municipal time or resources to promote or benefit private interests. Although final assessments are a matter of public record, one could not use, for example, computer data bases or programs not available to the public to get information for a
private appraisal business.
We acknowledge that appraisals are performed for purposes not related to the Board's responsibilities or other municipal matters. For example, private parties secure appraisals for financings, sales, or marketing efforts. Neither the Board member nor the private party may have contemplated that the appraisal would be used in connection with a municipal matter. However, such an event may occur. If such an appraisal were to be submitted to the Board at a later time in connection with a particular matter, s.23(b)(2) requires the Board member who performed the appraisal to apply objective criteria to that matter. EC-COI-89-23. In addition, as described below regarding s.23(b)(3), the Board member must also make a public disclosure of all the facts and circumstances regarding his work on the appraisal in order to dispel the appearance of a conflict of interest. See also EC-COI-89-29. If the Board member cannot be objective about the matter because of his prior private work on the appraisal, he must abstain from participating in that particular matter before the Board.[10]
Issues under s.23(b)(3) often arise because of one's relationships with non-immediate family members which do not involve financial interests under s.19. If a former private appraisal client of a Board member were to bring a matter before the Board, not involving the Board member's private appraisal, that Board member must fully disclose his history with the client in order to dispel an appearance of bias or influence prior to participating in the matter. Similarly, again when s.19 or s.17 issues are not involved, if a Board member assisted a party in completing abatement application for no pay, that Board member must disclose his prior relationship. See also EC-COI-89-16.[11]