Advisory Opinion No. 2016-17 Rhode Island Ethics Commission Advisory Opinion No. 2016-17 Approved: April 26, 2016 Re: John Shehan QUESTION PRESENTED: The Petitioner, a former member of the Newport Historic District Commission, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing clients before his former board within one year of his resignation. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Newport Historic District Commission, a municipal appointed position, does not qualify for a hardship exception and is prohibited by Rhode Island General Laws § 36-14-5(e)(4) from representing his clients before his former board until one year has elapsed from the date of his resignation. The Petitioner was a member of the Newport Historic District Commission (“HDC”) for eight years until his resignation on September 15, 2015. He states that the HDC consists of seven members and two alternates, appointed by the Mayor of the City of Newport with the consent of the Newport City Council, who have a demonstrated interest in historic preservation. Newport Code of Ordinances § 17.80.040(B). He informs that approximately 40% of Newport is part of the Historic District and subject to the jurisdiction of the HDC. He represents that the HDC’s purpose is to ensure that the appearance of proposed exterior alterations to historic properties is consistent with the original historical context of each property. He informs that a Certificate of Appropriateness from the HDC must be received prior to the issuance of building permits for properties within the Historic District. In his private capacity, the Petitioner is the owner of Shehan & Estabrook, a decorative arts design firm located in Newport. He represents that he has more than thirty years of experience as an architectural and interior designer. He states that his services include decorative paint, color consultation and historic restoration. He represents that he is not an architect and he consults with an engineer if his projects require structural elements. He states that over the course of his career in Newport approximately 75% of his projects have involved historic properties, from which he has gained both in-depth experience and an extensive interest in historic preservation.[1] He informs that while preparing design plans for a historic property, he conducts research into the relevant time period to ensure that the renovations are historically consistent. The Petitioner states that the owners of 46 Church Street in Newport have asked him to provide design services for the restoration of a house that was built in 1780. He states that the house is located directly across the street from Trinity Church within the Historic District. He states that the house’s historic character is currently distorted by twentieth century asphalt tiles, asbestos shingles and additions. He represents that the house has structural problems resulting from age and insect damage. He states that the plan for restoration would involve dismantling the house, salvaging all historic material, reinforcing the structure, and rebuilding a structure consistent with the original historic appearance of the property. Cognizant of the Code of Ethics’ prohibition upon representing another person before an agency of which he was a member within the past year, the Petitioner seeks a hardship exception to represent his clients’ Certificate of Appropriateness application before the HDC. He states that in the interest of transparency, although his clients could submit the design plans without his name on them, he does not want to hide the fact that he worked on this application. He represents that the design plans will likely be ready for submission to the HDC in August, approximately one month prior to the expiration of the one-year waiting period. 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 year thereafter. Section 36-14-5(e)(4). However, section 36-14-5(e)(1) specifically authorizes the Ethics Commission to grant an exception to allow a public official to represent himself or another person before his former agency based upon a finding that a denial of such permission would result in a hardship to the official. In reviewing questions of hardship on a case-by-case basis, the Commission has considered some of the following factors specific to cases involving property: whether the subject property involves the official s principal residence or principal place of business; whether the official s interest in the property is pre-existing to his or her public office or is recently acquired; and whether the relief sought involves a new commercial venture or an existing business. The Commission considers the totality of the circumstances and no single factor is determinative. The Commission has generally declined to grant hardship exceptions in prior advisory opinions where the property involved was not the petitioner’s primary residence or principal place of business but, rather, was related to the petitioner’s commercial interests or private business endeavors. For example, in Advisory Opinion 2006-43, the Commission declined to grant a hardship exception to a member of the Barrington Planning Board who sought approval from his own board to construct an affordable housing development because the property was not the petitioner’s residence or place of business, the development appeared to be in furtherance of a commercial venture, and the petitioner’s legal interest in the property did not predate his appointment to the Planning Board. See also A.O. 2003-47 (declining to grant a hardship exception to a former member of the Foster Planning Board who sought to file a subdivision application with his former board); A.O. 2000-41 (declining to grant a hardship exception to a member of the Exeter Zoning Board of Review who sought a special use permit from his own board for the purpose of installing a cellular tower on his residential property, given that the proposed commercial venture served only to generate additional income for the petitioner); A.O. 99-126 (declining to grant a hardship exception to a member of the Barrington Technical Review Board who sought to represent the clients of his architectural firm before his own board relative to his clients’ proposed project in Barrington because the project related to the petitioner’s private business endeavors and not his primary residence or place of business). In the present matter, the Petitioner’s proposed conduct falls squarely within section 36-14-5(e)’s prohibition on representing his client before a board of which he was a member within the last year. Furthermore, the Petitioner is not eligible for the General Commission Advisory 2010-1 (“GCA 2010-1) hardship exception for “Historic Architects Who Are Members of Historic District Commissions” because he is an architectural designer, not an architect.[2] After considering the totality of the circumstances and our prior advisory opinions, we find that the facts represented above do not justify granting a hardship exception. This project relates to the Petitioner’s private business endeavors as an architectural and interior designer. The property involved is not the Petitioner’s primary residence or principal place of business. Rather, it is the recently purchased property of the Petitioner’s clients, who have hired him to provide architectural design services for a historic restoration of the property. Here, the required one-year waiting period expires on September 15, 2016, only a month beyond the time that the Petitioner expects his design plans to be ready for submission to the HDC. Furthermore, the Petitioner has not indicated that it would substantially inconvenience his clients if they had to wait an additional four to six weeks for the Petitioner to be able to represent them before the HDC relative to their application for a Certificate of Appropriateness. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner, a former member of the Newport Historic District Commission, does not qualify for a hardship exception and is prohibited by section 36-14-5(e)(4) from representing his clients before his former board until one year has elapsed from the date of his resignation. 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) Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2006-43 A.O. 2003-47 A.O. 2000-41 A.O. 99-126 A.O. 99-120 G.C.A. 2010-1 Keywords: Hardship Exception Private Employment [1] While serving on the HDC, although he was unable to work on projects that involved exterior alterations to historic properties, he did work on interior design plans of historic properties that were not subject to the jurisdiction of the HDC. [2] GCA 2010-1 only applies to historic architects and does not apply to other architectural specialties. See, e.g., 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).