Advisory Opinion No. 2015-44 Rhode Island Ethics Commission Advisory Opinion No. 2015-44 Approved: October 20, 2015 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 representing his clients before his own board. 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 representing his clients before his own board, in accordance with General Commission Advisory 2010-1 and provided that he recuses from participation in all Historic District Commission matters involving his clients. The Petitioner is a member of the New Shoreham Historic District Commission (“HDC”), having served continuously since his appointment in 2006 by the New Shoreham Town Council. He states that it is an unpaid, volunteer position. He represents that he lives in the Town of 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 usually attends ten (10) of the HDC’s twelve (12) meetings each year. The Petitioner states that he has been a registered architect for over thirty-five (35) 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 and practicing 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 owners of the Darius Inn have asked him to assist with the design of a small exterior addition and terrace, as well as the relocation/concealment of existing and proposed air-conditioning compressors. He states that this property is located within the New Shoreham 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 property. He informs that his clients will seek both preliminary and final review by the HDC before a Certificate of Appropriateness can be granted. At this time, the Petitioner requests a hardship exception to represent the owners of the Darius Inn before the HDC, pursuant to General Commission Advisory (“GCA”) 2010-1. He represents that his involvement would include preparing design plans and presenting the project to the HDC at the hearings for the Certificate of Appropriateness. He states that he will recuse from any HDC matters involving his 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 his clients 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 outlined in 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.” GCA 2010-1. 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. 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 be applicable to a particular set of facts, the Petitioner must make representations to establish that he is a qualified historic architect. For example, the Commission has granted three GCA 2010-1 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 that her representations regarding her extensive education and work experience in historic preservation established that she was a qualified historic architect. A.O. 2015-39, A.O. 2015-7 & A.O. 2014-24. In the present matter, the Petitioner is an architect who specializes in historic preservation. He represents that his work experience and education exceed the United States Secretary of the Interior’s minimum professional qualifications for a historic architect.[1] Furthermore, the Commission has previously granted a total of four hardship exceptions to this same Petitioner, relative to his service on the HDC, after finding that it was satisfied in each case that the Petitioner made sufficient representations to establish that he qualified as a historic architect. A.O. 2014-15, A.O. 2013-42 & A.O. 2013-29 (issued in accordance with GCA 2010-1); A.O. 2010-7 (issued in accordance with the Commission’s prior policy for historic architects, GCA No. 8:Architect Members of State and Local Historic Preservation Commissions Appearing before Their Respective Agencies, which was adopted on November 30, 1989, and withdrawn on September 8, 2010). 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 and 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. 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