Advisory Opinion No. 2017-38 Rhode Island Ethics Commission Advisory Opinion No. 2017-38 Approved: August 8, 2017 Re: W. Douglas Gilpin, Jr., FAIA QUESTION PRESENTED: The Petitioner, a former 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 former board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former 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 former board, in accordance with General Commission Advisory 2010-1. The Petitioner is a former member of the New Shoreham Historic District Commission (“HDC”), having served from his appointment by the New Shoreham Town Council in 2006 until leaving the HDC on December 31, 2016. He states that his service on the HDC was 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. The Petitioner states that he has been a registered architect for over thirty-seven (37) years. He is presently registered in Maryland, Virginia, West Virginia and Rhode Island, having been registered here since 2004. He informs that he is one of only two Registered Architects living 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 Aldo’s Restaurant on Block Island have asked him to assist with the design of a sliding window enclosure to allow patrons to use a covered outdoor dining area during the island’s cooler “swing seasons.” 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. The Petitioner wishes to prepare a “Conceptual Design Plan” for submission to the HDC at its August 2017 meeting. He states that he is not available to attend the meeting, and that the project and plan will therefore be submitted by the restaurant owners. At this time, the Petitioner requests a hardship exception, pursuant to General Commission Advisory (“GCA”) 2010-1, to submit the Conceptual Design Plan to the HDC, and to possibly represent the owners relative to the project at a future meeting of the HDC if necessary. He states that because he is no longer a member of the HDC, there is no need for him to recuse from any HDC matters involving these or other 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). Relevant to the instant question presented, 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). 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 was a member during the one-year period following his severance from the board. However, given the particular facts of this case, we are of the opinion that the Petitioner qualifies for the specific hardship exception outlined in GCA 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.” This exception for historic architects was created by the Ethics Commission at a public hearing in 2010, 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. After considering public comment, the Commission 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 instead must 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 five 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 was qualified as a historic architect. A.O. 2015-44, 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 Ethics 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 former board, in accordance with GCA 2010-1. 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 G.C.A. 2010-1 A.O. 2015-44 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 Keywords Hardship Exception Historic Architect