Advisory Opinion No. 2012-31 Advisory Opinion No. 2012-31 Re: Richard C. Youngken QUESTION PRESENTED The Petitioner, a member of the South Kingstown Historic District Commission, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from being hired by the Town of South Kingstown to create a guidebook for homeowners in the Town’s historic districts. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the South Kingstown Historic District Commission, a municipal appointed position, is not prohibited by the Code of Ethics from being hired by the Town of South Kingstown to create a guidebook for homeowners in the Town’s historic districts. This opinion is based upon a finding by the Ethics Commission that the facts represented indicate that the denial of such permission would create a substantial hardship to the Town of South Kingstown and the South Kingstown Historic District Commission. In his private capacity, the Petitioner is a historic preservation planner. He states that preservation planning is a process that organizes preservation activities such as identification, evaluation, registration and treatment of historic properties in a logical sequence.[1] He represents that he has a Bachelor of Arts in Art History, Architectural History and Sociology as well as a Masters Degree in Community Planning. He states that he has over thirty (30) years of experience in historic preservation and community planning. He informs that his professional projects have included community comprehensive plans, historic resources surveys, National Register nominations, historic tax credit applications, local design reviews of zoning ordinances, subdivision regulations and by-laws, and design guidelines for historic district commissions. He represents that he is a principal of Youngken Associates, a small historic preservation, museum services and community planning consulting firm based in Rhode Island. In his public capacity, the Petitioner is a member of the South Kingstown Historic District Commission (“HDC”), having been appointed in October 2010. The members of the HDC are volunteers and do not receive any payment for their service. He informs that the HDC is supported by staff from the Town of South Kingstown’s (“Town”) Planning Department and functions under the state statutes for historical area zoning. R.I. Gen. Laws § 45-24.1-1 to -22. He states that the HDC is an advisory board that has no fiscal or jurisdictional control over the Town’s Planning Department. The Petitioner represents that the HDC applies the United States Secretary of the Interior’s Standards (and Guidelines) for the Treatment of Historic Properties as a foundation for its own reviews.[2] He states that these standards and guidelines are complicated and often difficult for property owners to understand and apply to their projects before the HDC. He informs that the Town would like to create a property owners’ handbook for explaining the goals and standards of the HDC and providing guidance on designing and carrying out work in historic districts. In order to fund this project, he states that in November 2011 the HDC approved the Town Planning Department’s suggestion to apply for a Certified Local Government (“CLG”) grant from the Rhode Island Historical Preservation and Heritage Commission (“RIHPHC”). The Petitioner referred Commission Staff to Doug McLean, the Town’s Senior Planner, for more information regarding the CLG grant process. Mr. McLean represents that in May 2012, the Town was awarded a $10,000 grant from the RIHPHC for the purpose of developing an educational guide for homeowners in the Town’s historic districts. He informs that the project requires a consultant qualified in the field of historic preservation planning, with the relevant skills, knowledge and experience needed to develop a homeowners’ guide. He states that the Request for Proposals (“RFP”) was developed by the RIHPHC in collaboration with Town staff to solicit bids from qualified consultants. He informs that the HDC members only discussed the project in general terms and did not participate in the drafting of the RFP. Mr. McLean represents that on September 6, 2012, the Town followed its standard bidding procedures by advertizing the RFP in the South County Independent Newspaper, and posting the RFP on the Town’s website and on the Municipal Notification Bidding System, which provides an email alert to approximately 900 vendors servicing the Rhode Island area.[3] The Town also directly emailed the RFP to a list of five (5) pre-qualified consultants provided by the RIHPHC, which included Youngken Associates. He states that responses to the RFP were due by September 19, 2012. He informs that the Town only received one (1) response to this RFP and it was from the Petitioner’s business, Youngken Associates. Mr. McLean states that the Town Planning Department and the HDC will collaborate on the decision making process for the consultant selection, providing a recommendation on which consultant to hire. He states that the final recommendation will be confirmed by the Town Council and the RIHPHC before the Town and the selected consultant are able to execute a contract for the project. The Town will contract directly with the consultant, similar to any other municipal contract. The final work product will be reviewed and approved by the Town’s Planning Department and the RIHPHC. The Petitioner represents that he initially assumed that he would not be able to respond to this RFP, given his status as a member of the HDC. The minutes of the May 1, 2012 and August 21, 2012 HDC meetings reveal that the Petitioner discussed ideas for this project with his fellow board members, lending his expertise in historic preservation planning to the conversation. He states that following the August 21, 2012 meeting, he conferred with the Town’s Special Legal Counsel for Planning and Zoning regarding whether it would be possible for him to respond to this RFP. He represents that the Town’s Special Legal Counsel indicated that it would not represent a conflict of interest for him to respond to this RFP provided that he recuses himself as a HDC member from all discussions and voting relative to this RFP and the CLG grant. The Petitioner states that he also conferred with Town staff regarding whether he can respond to this RFP.[4] Thereafter, the Petitioner, through his business Youngken Associates, submitted a timely response to the RFP. The Petitioner informs that the project is for a six (6) month period beginning in November 2012 and ending in May 2013. He represents that his role would be to educate and facilitate, as well as to actually research, write and provide illustrations for the homeowners’ guide, which will convey the HDC’s review procedures, standards and guidelines. He states that he would coordinate with a graphic designer to layout the guide and provide a print-ready copy. He represents that his prior professional experience will be helpful in customizing and clarifying the Secretary of the Interior’s standards and guidelines for the needs of the Town. He informs that the RFP requires him to appear before the HDC to provide status updates on the project and obtain input from the HDC. However, he represents that the project will not require any specific testimony or argument regarding the approval of this project. He states that if case examples are necessary to test review procedures, standards and guidelines, he will use projects proposed in other communities or ones invented specifically for the purpose of the guidebook. Cognizant of the Code of Ethics, the Petitioner represents that he will recuse from all HDC matters involving this RFP and the CLG grant project until the work is complete, all services are rendered and he is paid in full. In conjunction with the Petitioner’s request, the Commission also received correspondence from Mr. McLean, on behalf of the Town, requesting that the Petitioner be eligible to be considered for the consultant position based upon a finding of hardship to the Town in the absence of such permission. The central issue here is whether and under what circumstances a member of a municipal board may respond to a request for proposals circulated by the Town for the benefit of his own board. This issue implicates Commission Regulation 36-14-5006 (“Regulation 5006”), entitled “Employment From own Board,” one of the so-called “revolving door” provisions of the Code of Ethics. It generally prohibits elected and appointed officials from accepting paid employment or appointment that is offered by or through their own board or elective body. Regulation 5006 provides: No elected or appointed official may accept any appointment or election that requires approval by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality. Furthermore, during that same period of service and for one (1) year thereafter, irrespective of Regulation 5006, persons subject to the Code are not permitted to appear before their own board to represent themselves or any other person. R.I. Gen. Laws § 36-14-5(e). A person represents himself before a state or municipal agency if he participates in the presentation of evidence or argument before that agency for the purpose of influencing the judgment of the agency in his own favor. Commission Regulation 36-14-5016(a)(1). The Commission has previously stated that the general purpose of Regulation 5006 and the Code’s other revolving door provisions is to prevent government employees and officials from unfairly profiting from or trading upon the contacts, associations and special knowledge that they acquired while performing their public duties as members of state and municipal boards. A.O. 2010-26; A.O. 2006-1; A.O. 2004-36 (citing In re Advisory From the Governor, 633 A.2d 644, 671 (R.I. 1993)). The facts represented in the instant request for an advisory opinion clearly implicate the provisions of Regulation 5006, which would prohibit the Petitioner from performing this consultant work for the HDC. However, Regulation 5006 provides for a single exception to its prohibition if the Ethics Commission finds that the denial of such employment or position would create a substantial hardship for the body, board, or municipality. Notably, Regulation 5006 calls for a finding of hardship to the government body, as opposed to a hardship to the public official seeking employment. See § 36-14-5(e)(1). There is no definition of “substantial hardship” in the Code. In the few instances that the Commission has considered whether a Regulation 5006 hardship exists, however, the factors most relied upon have been a complete absence of any other applicants, a lack of other candidates that are qualified to fill the subject position, and/or whether the employment is a temporary measure or is intended to be permanent. The Commission determined that a substantial hardship to the government body existed in the following advisory opinions: In Advisory Opinion 2000-32, the Ethics Commission permitted a member of the East Providence Carousel Commission (Carousel Commission) to seek and accept employment from the Carousel Commission as Manager of the City’s Carousel. This finding of hardship was based upon the fact that the Carousel Commission had twice published advertisements for the position and did not receive any qualified applications, as well as a represented history of failure to attract and keep qualified persons in the position. In Advisory Opinion 95-68, the Commission opined that there was a substantial hardship to the Newport Common Burial Ground Advisory Commission that justified allowing a member to respond to a Burial Commission RFP to survey historical gravestones, given that the RFP received no responses after being circulated to the public, and that, if selected, the member would take a leave of absence from the board and take no part in any review of their proposal. See also A.O. 99-76 (opining that a Westerly Recreation Board (“Board”) member was permitted to accept a position as “clerk of the works” advertised by the Board, given that the Board had demonstrated a hardship based upon the lack of any qualified candidates to fill the position and because the position was both temporary and part-time); A.O. 95-118 (opining that a member of the Rhode Island Commission on Women could temporarily serve as the Commission’s interim Executive Director, given that the Commission demonstrated a hardship based upon the following representations: a) the Commissioner was uniquely familiar with the issues affecting equity for women, the work of the Commission, and the Commission’s office procedures; b) the Commission had been without a full-time Executive Director for over six (6) months; c) the Commissioner would resign from her position on the Commission; d) the Commissioner would serve as Interim Executive Director only until the Commission completed its search for a permanent replacement, a six month period; and e) the hiring process for the Executive Director would be an open and public process). Contra A.O. 2010-10 (opining that an East Providence Historic District Commission member (“EPHDC”) was prohibited from bidding on a contract to survey the Phillipsdale area of the City in support of nominating it to the National Register as a historic district because there was no evidence of hardship, the petitioner’s board had a substantial role in drafting the RFP and an EPHDC member served on the planning department committee overseeing the all aspects of the process). Because a “substantial hardship,” if found, must be experienced by the public body rather than by the public official, it is appropriate and necessary to consider the representations of Mr. McLean, the Town’s Senior Planner, in support of the Petitioner’s request. Mr. McLean represents that the only response to the RFP was from the Petitioner’s business, Youngken Associates. He states that only a small number of firms and individuals in the region possess the qualifications necessary to fulfill the scope of the work within this RFP. He further states that the Town attempted to ensure that the notification was provided to a select group of consultants qualified in historic preservation planning by directly sending the RFP to five (5) consultants identified by the RIHPHC, which was above and beyond the Town’s standard bidding process. He informs that the Town is under time constraints due to the CLG grant deadline, which has already been extended to the latest possible closure date allowed by the RIHPHC, August 2013. Based upon the current timeline, the final grant products will be due to the Town in May 2013, which will allow for the time needed to formally approve the grant products and close out all fiscal reporting processes with the RIHPHC. Mr. McLean represents that these deadlines significantly limit the time available for extending the RFP process or re-issuing the RFP. He informs that at the next meeting of the HDC, on October 23, 2012, the board will review the CLG grant proposal and make a recommendation regarding the project consultant. In the present matter, the Petitioner’s business was the only response to the RFP. There is no dispute that he and Youngken Associates are qualified to perform the work. Notably, none of the other four (4) local historic preservation planners identified by the RIHPHC responded to the RFP, nor did any of the approximately 900 vendors registered with the Municipal Notification Bidding System. Similar to the hardship exceptions granted in Advisory Opinions 99-76 and 95-118, the contract is of a limited duration and there is a demonstrated lack of qualified candidates. Moreover, Advisory Opinion 2010-10, which at first glance might seem similar, is clearly distinguishable because in that matter there was no evidence of hardship or lack of qualified applicants, and the petitioner’s board participated in drafting the bid specifications. Having considered both the Petitioner’s and Mr. McLean’s representations, as well as our previous advisory opinions in the area, it is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the HDC, may be hired by the Town as a consultant to the HDC. The Petitioner is required to recuse from all HDC matters involving this RFP and CLG grant, if hired as the consultant, until the project is completed and he is paid in full for services rendered. Notice of recusal shall be filed with in the Commission in accordance with § 36-14-6. This opinion is based upon a finding by the Ethics Commission that the Town would suffer a substantial hardship if not able to hire the Petitioner as a consultant. The Commission bases this finding on specific representations made by the Town, through its Senior Planner, including: 1) that the Town publicly advertised the position through its normal public bid procedures, in addition to specifically contacting five (5) local qualified historic preservation planners identified by the RIHPHC; 2) the Petitioner was the only applicant; 3) only a small number of firms and individuals in the region possess the qualifications required by the RIHPHC to complete this project; 4) the contract is limited to a six-month duration; and 5) the latest possible closure date for the CLG grant is August 2013, which does not allow time to extend or re-issue the RFP. Additionally, although the Petitioner, if hired as the consultant, will be required to appear before the HDC, the facts as represented above do not implicate § 36-14-5(e) because the Petitioner will not be appearing before the HDC to present argument or evidence for the purpose of influencing the HDC’s judgment in his favor. On the contrary, the Petitioner’s appearances before the HDC will be only to provide status updates on the project, obtain input from the HDC members and explain the content of the homeowners’ guide, an educational document which the HDC will use in the future to facilitate its application and review procedures. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5006 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2010-26 A.O. 2010-10 A.O. 2006-1 A.O. 2004-36 A.O. 2000-32 A.O. 99-76 A.O. 95-118 A.O. 95-68 Keywords: Hardship Exception Revolving Door [1] See U.S. Secretary of the Interior’s Standards and Guidelines for Preservation Planning. http://www.cr.nps.gov/local-law/arch_stnds_1.htm#guide. [2] See http://www.nps.gov/hps/tps/standguide/. [3] The Municipal Notification Bidding System serves Newport, Middletown, Portsmouth, Smithfield, North Kingstown, South Kingstown, Providence, East Providence, Johnston, Bristol, West Greenwich, the North Kingstown School System, the Exeter-West Greenwich Regional School District and the Portsmouth Water Department. This system allows vendors who register to be notified of upcoming bid solicitations by E-Mail. [4] On September 18, 2012, Mr. McLean contacted the Ethics Commission. Mr. McLean was advised that the Petitioner should seek an advisory opinion because the facts he represented implicate provisions of the Code of Ethics.