Advisory Opinion No. 2015-39 Rhode Island Ethics Commission Advisory Opinion No. 2015-39 Approved: September 22, 2015 Re: Gail Hallock Cyr, AIA QUESTION PRESENTED: The Petitioner, a 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 her clients obtain a Certificate of Appropriateness. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a 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 clients obtain a Certificate of Appropriateness, in accordance with General Commission Advisory 2010-1 and provided that she recuses from participating in all Historic District Commission matters involving her clients. The Petitioner is a 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 graduated from the Rhode Island School of Design with a Bachelor of Architecture in 1980. She represents that, from 1983 to 1987, 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 back to 1788, and has since worked on a 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. The Petitioner informs that the owners of a historic house in Wickford have asked her to provide design services for the construction of a new porch addition. She states that this property is located in the Historic District and is, therefore, subject to the jurisdiction of the HDC. Accordingly, the owners must receive a Certificate of Appropriateness from the HDC prior to erecting, altering, restoring, moving or demolishing any part of their historic house. She states that, pursuant to HDC guidelines, the plans for the porch, as new construction, will require both a conceptual conference and a final review by the HDC before a Certificate of Appropriateness can be granted. At this time, the Petitioner requests a hardship exception to represent these clients before the HDC pursuant to General Commission Advisory (“GCA”) 2010-1. She states that it would adversely impact her architectural practice if she has to decline this client because of the house’s location in the Historic District. She represents that her involvement relative to the HDC would include preparing design plans and being available to provide testimony to the HDC at the hearings for the Certificate of Appropriateness. She states that she will recuse from any HDC matters involving these clients. 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)(1), (2) & (3); see also Commission Regulation 36-14-5016 (defining representation of oneself or others). Section 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 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 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. However, 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 be applicable to a particular set of facts, the Petitioner must make representations to establish that she is a qualified historic architect. For example, the Commission has granted three GCA 2010-1 hardship exceptions to an architect on Block Island, one for each client, after concluding that it was satisfied that his representations regarding his extensive education and work experience in historic preservation established that he was a qualified historic architect. See A.O. 2014-15, A.O. 2013-42 & A.O. 2013-29. In the present matter, 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.[1] 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. Furthermore, the Commission previously issued two advisory opinions to this same Petitioner in which the Commission concluded that the Petitioner qualified for a GCA 2010-1 hardship exception in each case. See A.O. 2015-7 (opining that this Petitioner qualified for a GCA 2010-1 hardship exception, and permitting her to represent her client before the HDC in order to obtain a Certificate of Appropriateness for the construction of a new addition to a house in the historic district); A.O. 2014-24 (opining that this Petitioner qualified for a GCA 2010-1 hardship exception, and permitting her to represent her client before the HDC in order to obtain a Certificate of Appropriateness to demolish a 1930s addition and then restore the pre-1880s sections of the structure and construct a new porch consistent with the historic character of the building). 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 her own board to help her clients obtain a Certificate of Appropriateness, in accordance with GCA 2010-1 and provided that she recuses from participating in all HDC matters involving her 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. 2015-7 A.O. 2014-24 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 [1] In order to ascertain whether someone is a 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 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.