Advisory Opinion No. 2017-27 Rhode Island Ethics Commission Advisory Opinion No. 2017-27 Approved: June 6, 2017 Re: Matthew McGeorge, AIA, LEED AP QUESTION PRESENTED: The Petitioner, a member of the East Greenwich 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 East Greenwich 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 the vice-chairperson of the East Greenwich Historic District Commission (“HDC”), having served continuously since his appointment in 2011 by the East Greenwich Town Council. He states that it is an unpaid, volunteer position. The Petitioner states that he has been a registered architect in Rhode Island since 2007. He is presently also registered in Massachusetts, Connecticut, and Pennsylvania. He represents that he has a Bachelor in Environmental Design from the University of Tasmania, Tasmania, Australia, and a Master of Architecture from the Illinois Institute of Technology. He states that he specializes in historic preservation, adaptive reuse, and the design of new structures with historic character allusions and, in the past three years, his firm and he have completed approximately twelve historic adaptive reuse projects, including adaptive reuse of the Elizabeth Mill in Warwick and several historic renovation projects, including the Edward Bannister House for Brown University. He further states that approximately forty percent (40%) of his work involves historic structures. The Petitioner represents that, since November 2016, he has been under a contract with a client to design a mixed-use redevelopment project at 461 Main Street in the Town of East Greenwich. He states that this property is located within the East Greenwich Historic District and is, therefore, subject to the jurisdiction of the HDC. In addition to a new mixed-use development, the project proposes the demolition of several so-called non-historically contributing structures. 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. The Petitioner informs that his client has already sought and received preliminary “conceptual approval” of the plan from the HDC, has filed an application for approval and issuance of a Certificate of Appropriateness regarding the demolition of the above-referenced structures and, following the review of the Town’s Planning Department, will seek final review and issuance of a Certificate of Appropriateness by the HDC. At this time, the Petitioner requests a hardship exception to represent his client before the HDC, pursuant to General Commission Advisory (“GCA”) 2010-1. He represents that he is the principal architect on the project and as such is responsible for its complete oversight and management, which would include preparing design plans and presenting the project to the HDC at the hearings for the Certificates of Appropriateness. He states that he has thus far recused from any HDC matters involving his 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)(1), (2) & (3); Commission Regulation 36-14-5016 (defining representation of oneself or others). Section 36-14-5(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 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 outlined in GCA 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.” This exception is based upon the Ethics 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 Ethics 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 separate 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] 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. 99-120 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. (last visited on June 1, 2017)