Advisory Opinion No. 2014-15 Rhode Island Ethics Commission Advisory Opinion No. 2014-15 Approved: June 3, 2014 Re: W. Douglas Gilpin, Jr. FAIA QUESTION PRESENTED: The Petitioner, a member of the Town of New Shoreham 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 appearing before his own board to help his client obtain a Certificate of Appropriateness. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of New Shoreham 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 appearing before his own board to help his client obtain a Certificate of Appropriateness, in accordance with General Commission Advisory 2010-1 and provided that he recuses from participation in all Historic District Commission matters concerning his client. The Petitioner is a member of the New Shoreham Historic District Commission (“HDC”), having served continuously since his appointment in 2006. He states that it is an unpaid, volunteer position. He represents that he lives in New Shoreham (“Block Island”) at least one-third of the year and spends the rest of the year in Virginia. He represents that his residency in Virginia does not have a substantial impact upon his service on the HDC, given that he attends eleven (11) of the HDC’s twelve (12) meetings each year. The Petitioner states that he has been a registered architect for over thirty-three (33) years. He is presently registered in Maryland, Virginia, West Virginia and Rhode Island, having been registered here since 2004. Notably, he informs that he is currently the only registered architect living at least one-third of the year on Block Island. He represents that he has a Bachelor of Science in Architectural Studies and a Master of Architecture from the University of Illinois. He states that he specializes in historic preservation, adaptive reuse, and the design of new structures with historic character allusions. He informs that he has authored historic structure reports and feasibility studies, and has provided condition assessment surveys for many nationally recognized historic buildings. He further states that approximately fifty percent (50%) of his work has involved historic structures. The Petitioner represents that the owner of a residence located within the New Shoreham historic district has asked him to assist with home renovations. He states that the renovations would primarily be in the interior of the house but would also involve the relocation of five (5) windows on the facade, the enclosure of a rear porch, and the installation of a new back door. Given the fact that this potential client’s home is located in the historic district, any exterior renovations are subject to the jurisdiction of the HDC.[1] The Petitioner states that his representation of this client, with respect to the HDC’s involvement, would consist of preparing design plans and being available to provide testimony to the HDC when the application is scheduled for a final review.[2] He further represents that he will recuse from any HDC matters involving his client’s project. Section 5(e) of the Code of Ethics strictly 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, irrespective of the potential for recusal, without first receiving a hardship exception from the Ethics Commission. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(b)(2). Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. 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, given the particular facts of this case the Petitioner may qualify for a specific hardship exception as outlined in General Commission Advisory (“GCA”) 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.” This exception is based upon the 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.” The 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 to do 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 from the Ethics Commission prior to representing a client before their own board. 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 also 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 be applicable to a particular set of facts, the Petitioner must make representations to establish that he is a qualified historic architect. In the present matter, the Petitioner is an architect who specializes in historic preservation. He represents that his work experience and education exceed the U.S. Secretary of the Interior’s minimum professional qualifications for a historic architect.[3] He further represents that he is the only registered architect living at least one-third of the year on Block Island. It is significant to note that this Commission has previously issued three similar advisory opinions to this Petitioner in which hardship exceptions were granted based upon the Petitioner’s status as a historic architect. See A.O. 2013-42 (granting a hardship exception under GCA 2010-1 and permitting the Petitioner to represent his clients before the HDC in order to obtain a Certificate of Appropriateness for the construction of a new exterior deck on a residence within the Historic District); A.O. 2013-29 (granting a hardship exception under GCA 2010-1 and permitting the Petitioner to represent his client, the National Hotel, before the HDC in order to obtain a Certificate of Appropriateness to construct new housing for hotel employees on property located in the Historic District); A.O. 2010-7 (granting a hardship exception to the Petitioner and permitting him to represent a client before the HDC to obtain a Certificate of Appropriateness for exterior improvements and to add a second floor to a home located in the Historic District Overlay). 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 appearing before his own board to help his client obtain a Certificate of Appropriateness, in accordance with GCA 2010-1 and provided that he recuses from participating in all HDC matters concerning his client. Notice of recusal shall be filed in accordance with § 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 Commissioner Regulation 36-14-5016 Related Advisory Opinions: G.C.A. 2010-1 A.O. 2013-42 A.O. 2013-29 A.O. 2010-7 Keywords: Hardship Exception Historic Architect