Advisory Opinion No. 2017-51 Rhode Island Ethics Commission Advisory Opinion No. 2017-51 Approved: November 14, 2017 Re: Gregory Maxwell, AIA QUESTION PRESENTED: The Petitioner, a member of the East Greenwich Historic District Commission, a municipal appointed position, who in his private capacity is an architect, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing a client before his own board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the East Greenwich Historic District Commission, a municipal appointed position, who in his private capacity is an architect, qualifies for a hardship exception to the Code of Ethics’ prohibition on representing his clients before his former board, in accordance with General Commission Advisory 2010-1. The Petitioner has been a member of the East Greenwich Historic District Commission (“HDC”) since 2015. In his private capacity, the Petitioner is an architect, registered in Rhode Island since 2009. The Petitioner represents that he has a Bachelor of Arts from the University of Texas at Austin, where he completed a graduate level course in Historic Preservation, and a Master of Architecture from Rhode Island School of Design. The Petitioner states that although his current practice has been largely non-specialized, he has previously provided oversight and prepared drawings and specifications for several historic buildings including the Chorus of Westerly, St. Teresa’s Church in Pawtucket, the Peerless Building in Providence, and two late 19th-century homes, one designed by Charles Bevins located in Jamestown, Rhode Island and the other designed by William Emerson located in Gosnold, Massachusetts. The Petitioner represents that he has been asked to provide architectural services on a project involving a property located within the East Greenwich Historic District and, therefore, subject to the jurisdiction of the HDC. Thus, the owners must receive a Certificate of Appropriateness from the HDC prior to erecting, altering, restoring, moving or demolishing any part of their historic property. The Petitioner explains that along with the interior renovations of their home, his clients are planning minor exterior modifications for which they need the approval of the HDC. The Petitioner represents that his involvement with the project will involve preparing before and after drawings and providing specifications for the products to be used for the exterior modifications. The Petitioner represents that he does not plan on appearing before the HDC as his clients will be presenting all the plans and seeking final approval and issuance of a Certificate of Appropriateness. Based on this set of facts, the Petitioner seeks the guidance of the Ethics Commission regarding whether he qualifies for a hardship exception to represent his potential client before the HDC, pursuant to General Commission Advisory (“GCA”) 2010-1. Section 5(e) of the Code of Ethics prohibits public officials and employees from representing themselves, representing another person, or acting as an expert witness before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e)(1), (2) & (3); Commission Regulation 36-14-5016 (defining representation of oneself or others). Section 36-14-5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. Section 36-14-5(e)(4). In contrast to most other Code of Ethics provisions, declining to participate in related discussions and votes is insufficient to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists. As an initial matter, the Petitioner’s proposed conduct falls within section 5(e)’s prohibition on representing his client before a board of which he is a member. However, the Ethics Commission has carved out a specific hardship exception outlined in GCA 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.”[1] This exception is based upon the Ethics Commission’s finding that “municipal historic district commissions within the state of Rhode Island are best served if they are able to have a sitting member who specializes in historic architecture and preservation.” GCA 2010-1. The Ethics Commission has concluded that, given the limited number of historic architects in the state, recruiting qualified persons to serve on historic district commissions would be difficult and would reduce the ability of historic district commissions to effectively function if those architects are thereafter prohibited from representing private clients before the commission on which they serve. Notably, pursuant to GCA 2010-1, members of historic district commissions may not presume that the exception is applicable to their specific set of circumstances, but are required to seek an advisory opinion each time they consider accepting a client whose project would require them to appear before their own board. Additionally, GCA 2010-1’s narrow exception only applies to historic architects and does not apply to other architectural specialties. See A.O. 99-120 (declining to grant a hardship exception to a member of the New Shoreham Historic District Commission, who was a landscape architect and the owner of a landscape architecture business on the island, because his occupation did not fall within the guidelines of a historic architect). Thus, in order for GCA 2010-1 to apply to a particular set of facts, the Petitioner must make representations to establish that he is a qualified historic architect. For example, the Commission granted three separate hardship exceptions to a member of the North Kingstown Historic District Commission, who was also an architect in private practice in that same town, after concluding that it was satisfied by her representations regarding her education, work experience in historic preservation, and her qualifications as a historic architect. A.O. 2015-39, A.O. 2015-7 & A.O. 2014-24. In the present matter, the Petitioner represents that his work experience and education meet the United States Secretary of the Interior’s minimum professional qualifications for a historic architect.[2] For all of these reasons, the Commission is satisfied that the Petitioner’s request falls squarely within the confines of GCA 2010-1. Accordingly, it is the opinion of the Ethics Commission that the Petitioner qualifies for a hardship exception to the Code of Ethics’ prohibition on representing his clients before his own board, in accordance with GCA 2010-1, provided that he recuses from participating in all HDC matters involving his clients. Notice of recusal shall be filed in accordance with section 36-14-6. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: G.C.A. 2010-1 A.O. 2015-39 A.O. 2015-7 A.O. 2014-24 A.O. 99-120 Keywords: Hardship Exception Historic Architect [1] On November 30, 1989, the Ethics Commission issued General Commission Advisory (“GCA”) No. 8, “Architect Members of State and Local Historic Preservation Commissions Appearing Before Their Respective Agencies,” allowing architects who specialize in historic preservation and who serve on historic district commissions to represent clients before their respective commission without triggering a violation of the Code of Ethics. In 2010, the Ethics Commission voted to withdraw GCA No.8. After considering public comment, and in response to overwhelming support for continuing of the exception, the Ethics Commission replaced GCA NO.8 with GCA 2010-1 entitled “Historic Architects Who Are Members of Historic District Commissions.” [2] In order to ascertain whether someone is an historic architect, GCA 2010-1 incorporated the minimum professional qualifications for historic architecture set forth by the U.S. Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation. The minimum professional qualifications in historic architecture are a professional degree in architecture or a State license to practice architecture, plus one of the following: 1. At least one year of graduate study in architectural preservation, American architectural history, preservation planning, or closely related field; or 2. At least one year of full-time professional experience on historic preservation projects. Such graduate study or experience shall include detailed investigations of historic structures, preparation of historic structures research reports, and preparation of plans and specifications for preservation projects. http://www.nps.gov/history/local-law/arch_stnds_9.htm. (last accessed on November 8, 2017)