September 20, 2001
H. William Brown, Ph.D., MAI
350 Bay Street, Suite 100-111
San Francisco, CA 94133
Re: Request for Opinion Concerning San Francisco Charter Section C8.105(e)
Dear Dr. Brown:
In response to the Ethics Commission's July 23, 2001 advice letter, you have asked for clarification as to whether post-employment restrictions on employees of the City and County of San Francisco might prevent you from preparing real estate property valuation appraisal reports to the Assessor's Office or appearing before the Assessment Appeals Board to testify regarding such appraisals.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter Section C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide similar protection. See id.
Because you seek advice regarding specific actions that you may take in the future, the Commission is treating your questions as a request for a formal opinion.1
Questions
You asked the Ethics Commission to consider the following questions:
1) Would the submission of a private property appraisal report that you prepared to the Assessor's Office constitute a violation of the Charter prohibition on post-employment activities?
2) Would your appearance before the Assessment Appeals Board to respond to questions by the Assessor's Office about an appraisal report that you prepared violate the post-employment ban?
3) Would your visit to the Assessor's Office to review property files to determine the history of a piece of property and the sticks and stones of its construction violate the post-employment ban?
Summary of Advice
1) The submission of a private property appraisal report that you prepared to the Assessor's Office, whether by the property owner's agent or attorney, constitutes a prohibited appearance before the Assessor's Office and therefore would violate the Charter prohibition on post-employment activities.
2) Your appearance at the Assessment Appeals Board to respond to questions by the Assessor's Office regarding an appraisal report that you prepared is an appearance before the Assessor's Office and therefore would violate the Charter prohibition on post-employment activities.
3) Your visit to the Assessor's Office in order to review property files to determine the history of a piece of property and the sticks and stones of its construction is not an appearance before the Assessor's Office for the purposes of the post-employment ban.
Background
You provided the Ethics Commission with the following information.
You are a member of the Appraisal Institute (MAI) and an expert on real estate valuation of urban properties. Until you retired on May 12, 2001, you were a full time employee with the Assessor's Office for the City and County of San Francisco. You state that you concur with the Commission's advice that the S.F. Charter bars you from representing private clients before the Assessor's Office for a period of two years from the date of your retirement.
You explain that on large properties such as office buildings and hotels, two parties are generally involved in an assessment appeal: an agent or attorney who files the appeal on behalf of the property owner, and an appraiser who prepares an appraisal report and appears before the Appeals Board as an expert witness. You state that it is the agent or attorney who communicates with and resolves disputes with the Assessor's Office.
You state that as an appraiser, you may be required to prepare an independent appraisal report that will be submitted to the Assessor's Office by a property owner's agent or attorney. You add that although you prepare and sign the appraisal report, you do not have any direct contact with the Assessor's Office.
You also state that should a hearing ensue before the Assessment Appeals Board, you may be called upon to testify as an expert witness about the appraisal report that you prepared. You may be cross-examined by the Assessor's Office about the appraisal report. You asked whether responding to questions by the Assessor's Office would constitute a prohibited appearance before the Assessor's Office.
In addition, you state that in the course of conducting your appraisal business, you have occasionally been given letters by property owners who authorize you to visit the Assessor's Office to look at property files in order to determine the history of the property and the sticks and stones of its construction. You informed staff that you do not engage in negotiations or conduct any other business when you examine such files. You asked if a visit to the Assessor's Office for such purposes constitutes an appearance in violation of the post-employment ban.
Discussion
A. Prohibition
Section C8.105(e) of the San Francisco Charter provides that no person who has served as an employee of the City may within a period of two years after termination of employment appear before his or her former agency to represent any private interest. The plain language of Section C8.105(e) prohibits you from appearing before the Assessor's Office to represent a private interest. Accordingly, the question presented by your letter is whether any of the activities you describe constitutes an "appearance" before the Assessor's Office.
B. "Appearance" before the Assessor's Office
In a previous opinion letter, the Ethics Commission stated that the prohibition in Section C8.105(e) applies to all appearances made to represent private interests. See February 21, 2001 Ethics Commission advice letter to Merrill J. Schwartz, Esq. The prohibition covers any communication by an individual before his or her former board or agency, including staff, made on behalf of a private interest subject to the board or agency's regulation.
1. Does submission of an appraisal report prepared and signed by you constitute an appearance before the Assessor's Office?
In the Schwartz opinion letter, the Ethics Commission stated that section C8.105(e) prohibits all contacts made on behalf of private interests, not just those that constitute overt advocacy. There, the Commission concluded that although a former employee of the Planning Department may participate in the preparation of environmental impact reports and related documents ("CEQA documents") for privately sponsored projects, she may not personally communicate orally or in writing with the San Francisco Planning Commission or the Planning Department staff on behalf of private clients for two years from the date she resigned from her position at the Planning Department.
Here, you are a former employee of the Assessor's Office. You indicate that you may be called upon to prepare appraisal reports for private property owners. You state that as an appraiser, you do not personally submit such a report to, or negotiate any assessment dispute with, the Assessor's Office; rather, the property owner's agent or attorney submits the report and negotiates resolution of the assessment dispute. Therefore, you claim that you will have no direct contact with the Assessor's Office. The Ethics Commission disagrees with this assertion.
It is clear that when you prepare an appraisal report, you sign off on it, indicating your endorsement of its contents. Thus, the appraisal report reflects your valuation of a piece of property. When it is delivered to the Assessor's Office, it conveys your valuation of the property to the Assessor's Office. Therefore, the appraisal report is a communication written from you to the Assessor's Office. It matters not whether you put the report in the mail or whether the property owner's agent or attorney delivers it personally to the Assessor's Office.
When the report is received by the Assessor's Office, it will be subject to review by your former colleagues whose decisions may be influenced by the knowledge that you prepared and signed the report. The possibility that the Assessor's Office will be unduly influenced by your imprimatur, or that it will treat the report differently than it would if the report had not been prepared and signed by a former employee, is exactly the basis for the prohibition under Section C8.105(e). Accordingly, the Ethics Commission finds that submission of an appraisal report prepared and signed by you constitutes a prohibited appearance within the meaning of Section C8.105(e).
2. Does responding to questions by the Assessor's Office at a hearing before the Assessment Appeals Board constitute an appearance before the Assessor's Office?
In the Commission's July 23, 2001 letter to you, the Commission noted that when you represent an interest before the Assessment Appeals Board ("Board"), you may come into contact with the Assessor's Office in order to resolve a dispute. The Commission advised that such a contact would constitute representation of a private interest before your former agency, which is barred by Section C8.105(e). The Commission's position has not changed.
As a general proposition, when you appear before the Board to testify as an expert witness regarding the appraisal reports that you may have prepared, you have no greater influence on the decisions of the Board than does a member of the public because you were never employed by the Board. Therefore, you are not prohibited from appearing before the Board.
However, when you provide testimony in response to cross-examination by the Assessor's Office about an appraisal report that you prepared, you are not only engaging in direct oral communications with the Assessor's Office but you are also orally elaborating on a prior written communication with the Assessor's Office. In such a role, you are making an appearance before the Assessor's Office, in violation of Section C8.105(e).2
3. Does review of property files at the Assessor's Office constitute an appearance before the Assessor's Office?
According to the Assessor's Office, authorized individuals may visit the office to conduct reviews of confidential property files on behalf of private clients. Individuals who do so do not transact business or engage in negotiations with staff. Although they may request copies of the files, they ordinarily only review the files at the front counter under staff supervision.
If the above scenario comports with your visits to the Assessor's Office to review property files to ascertain the property's history and the sticks and stones of a building's construction, and if you do not otherwise transact business or engage in negotiations with staff in the Assessor's Office during such visits, such visits would not be deemed communications for the purposes of Section C8.105(e). Accordingly, they do not constitute prohibited appearances before the Assessor's Office.
I hope you find this letter responsive to your inquiry. Please contact me at (415) 581-2300 if you have any additional questions.
Sincerely,
Ginny Vida,
Executive Director
By: Mabel Ng
Deputy Executive Director
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1 As we indicated in our earlier letter to you, state law contains a number of prohibitions affecting employees and former employees of an assessor's office, such as Revenue and Taxation Code §§ 1365 and 1624.1. Because the Ethics Commission is unable to provide advice regarding state law, we recommend that you seek guidance from private counsel regarding other possible prohibitions found in state law that are not addressed in this letter.
2 This advice letter is addressed solely to the facts you presented. If the facts change, please feel free to contact the Commission for further advice.