Advisory Opinion No. 2014-24 Rhode Island Ethics Commission Advisory Opinion No. 2014-24 Approved: August 19, 2014 Re: Gail Hallock Cyr, AIA QUESTION PRESENTED: The Petitioner, an alternate member of the North Kingstown Historic District Commission, a municipal appointed position, who in her private capacity is an architect, requests an advisory opinion regarding whether she qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before her own board to help a client obtain a Certificate of Appropriateness. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an alternate member of the North Kingstown Historic District Commission, a municipal appointed position, who in her private capacity is an architect, qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before her own board to help her client obtain a Certificate of Appropriateness, in accordance with General Commission Advisory 2010-1 and provided that she recuses from participation in all Historic District Commission matters concerning her client. The Petitioner is an alternate member of the North Kingstown Historic District Commission (“HDC”), having served since her appointment in February 2012. She states that it is an unpaid, volunteer position. She informs that the HDC is comprised of five members and one alternate member. She represents that the HDC’s Historic District consists of the village of Wickford. The Petitioner represents that in her private capacity she has been a registered architect in Rhode Island since 1988 specializing in residential properties. She states that she has extensive experience in historic preservation. She informs that in May 2014 she was hired by her friend, who owns a house located on Main Street in Wickford, which is in the Historic District. She informs that her client would like to demolish a 1930s addition that was used as a hotel and then restore the pre-1880s sections of the structure and construct a new porch consistent with the historic character of the building. The Petitioner states that at the time of being hired by her client she was unaware that the Code of Ethics required more than recusal prior to appearing before her own board. She represents that on June 25, 2014, she attended a class for Best Practices for Historic District Commissions where she learned that she could not represent her client before the HDC without first receiving an advisory opinion from the Ethics Commission. She then notified the Town’s Planning Department and her client of her need to put the matter on hold until she contacted the Ethics Commission. She contacted the Ethics Commission on July 3, 2014, and spoke with an investigator who, recognizing the potential for an advisory opinion, referred the Petitioner to a staff attorney. On July 8, 2014, a Commission staff attorney contacted the Petitioner and advised her either to terminate her representation of this client or to seek an advisory opinion and not to appear before the HDC until she received further advice from the Commission. The Petitioner states her client appeared before the HDC on July 7, 2014, at which time the client only received permission for the demolition of the 1930s addition because the HDC, aware of the Petitioner’s potential conflict of interest, did not want to review the Petitioner’s drawings for the renovation. The Petitioner states that she did not attend that meeting of the HDC. She represents that her client needs to appear before the HDC one more time to receive a Certificate of Appropriateness for the post-demolition renovation of her home and the construction of a new porch.[1] She represents that she has already completed the architectural drawings for this project and it would be difficult and expensive for her client to hire another architect at this time. She further informs that she would like to be available to provide testimony to the HDC at the hearings for the Certificate of Appropriateness. If permitted to continue to represent this client, the Petitioner states that she would recuse from any HDC matters involving her client. 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. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(b)(2). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. 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 her client before a board of which she is a member. However, given the particular facts of this case the Petitioner may qualify for a specific hardship exception 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. The Commission has considered GCA 2010-1 in three advisory opinions, which were all issued to W. Douglas Gilpin, Jr. FAIA, an architect who resides one-third of the year on Block Island. See A.O. 2013-29 (applying GCA 2010-1 for the first time and opining that a member of the New Shoreham Historic District Commission, who in his private capacity was an architect, qualified for a hardship exception because the Commission was satisfied that his extensive education and work experience in historic preservation qualified him as a historic architect); A.O. 2014-15 & A.O. 2013-42 (containing nearly identical facts to A.O. 2013-29 and granting a hardship exception under GCA 2010-1). The three advisory opinions issued to Mr. Gilpin are instructive as to the application of the exception and clearly demonstrate that GCA 2010-1 requires architects to seek an advisory opinion from the Ethics Commission each time they consider accepting a client whose project would require them to appear before their own board. Notably, 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 be applicable to a particular set of facts, the Petitioner must make representations to establish that she is a qualified historic architect.[2] The Petitioner represents that her work experience and education exceed the U.S. Secretary of the Interior’s minimum professional qualifications for a historic architect. She graduated from the Rhode Island School of Design with a Bachelor of Architecture in 1980 and is a registered architect in Rhode Island. She states that over the course of her career she has completed numerous investigations of historic structures, historic structure research reports, and plans and specifications for preservation projects. She states that historic properties require detailed evaluations of the existing structure and research into the original appearance of the structure and how it changed through time. She states that consistent with the U.S. Secretary of the Interior’s Standards for Restoration and Guidelines for Restoring Historic Buildings she endeavors to reuse as much original material as possible and designs any new additions to blend in with the original structure and the neighborhood. The Petitioner informs that her experience in historic preservation began in the 1970s while working for her father’s architectural firm in Berkshire County, Massachusetts. She states that since 1983 she has worked in Rhode Island, first for her father’s firm and then opening her own firm upon his retirement. From 1983 to 1987, she represents that she worked on a variety of historic residences in the east bay of Rhode Island. She informs that she moved to Wickford in 1987, where she purchased a house that dates to 1788, and has since worked on variety of historic residences in southern Rhode Island. She states that she worked on at least six historic houses located in Wickford prior to her appointment to the HDC. After considering the Petitioner’s representations relative to her experience as a historic architect, 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 her own board to help her client obtain a Certificate of Appropriateness, in accordance with GCA 2010-1 and provided that she recuses from participating in all HDC matters involving her client. Notice of recusal shall be filed in accordance with section 36-14-6. In the future, the Petitioner is advised to seek advice from the Ethics Commission prior to commencing work on any new architectural projects subject to the jurisdiction of the HDC. 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. 2014-15 A.O. 2013-42 A.O. 2013-29 A.O. 2010-7 A.O. 99-120 A.O. 99-113 Keywords: Hardship Exception Historic Architect