Advisory Opinion No. 2019-29 Rhode Island Ethics Commission Advisory Opinion No. 2019-29 Approved: April 23, 2019 Re: Arlene Tunney QUESTION PRESENTED: The Petitioner, a member of the New Shoreham Historic District Commission, a municipal appointed position, who in her private capacity is an architect, seeks an advisory opinion regarding whether she qualifies for a hardship exception to the Code of Ethics’ prohibition on representing her client before her own board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham 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 representing her client before her own board in accordance with General Commission Advisory 2010-1, provided that she recuses from participation in all Historic District Commission matters involving her client. The Petitioner is a member of the New Shoreham Historic District Commission (“HDC”), having served continuously since her appointment two years ago. She informs that the HDC is comprised of seven members and no alternate members. The Petitioner represents that she received a Bachelor of Fine Arts in Architecture from Pratt Institute in Brooklyn, New York in 1966. She further represents that she has been a registered architect in Rhode Island since 1998, adding that she has extensive experience in historic preservation. The Petitioner cites the Killingworth Town Hall in Killingworth, Connecticut, as an example of her work on historic preservation projects which incorporated detailed investigations of historic structures, preparation of historic structures research reports, and preparation of plans and specifications. The Petitioner states that the owner of a home located in the New Shoreham Historic District (“Historic District”) has asked her to provide design services for the replacement of windows and doors in the home for purposes of bringing it into compliance with Historic District requirements. The Petitioner further states that only one appearance before the HDC is anticipated, and that approval from the HDC will allow the issuance of a permit by the New Shoreham Building Official for completion of the work on her client’s home. The Petitioner requests a hardship exception pursuant to General Commission Advisory (“GCA”) 2010-1 to represent this client before the HDC. She represents that she will recuse from participating in the HDC’s hearing of, and decision on, this matter and any other matters involving this client. Rhode Island Gen. Laws § 36-14-5(e) (“Section 5(e)”) of the Code of Ethics 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. Section 5(e)(1), (2) & (3); see also Commission Regulation 1.1.4 Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”) (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. 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, the Ethics Commission has carved out a specific hardship exception outlined in GCA 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.”[1] 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 were thereafter prohibited from representing private clients before the commissions 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). For GCA 2010-1 to apply to her particular situation, the Petitioner must make representations to establish that she is a qualified historic architect. For example, the Commission 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 as to each client’s particular situation established that he was a qualified historic architect. See A.O. 2014-15; A.O. 2013-42; and A.O. 2013-29. In the present matter, the Petitioner represents that her work experience and education meet or exceed the U.S. Secretary of the Interior’s minimum professional qualifications for an historic architect.[2] Specifically, in addition to having earned a professional degree in architecture and obtaining a State license to practice architecture, the Petitioner represents that, among other qualifying projects, she worked full-time in excess of one year on an historic preservation project involving the Killingworth Town Hall in Killingworth, Connecticut. She explains that her work on the Killingworth and other historic preservation projects incorporated detailed investigations of historic structures, preparation of historic structures research reports, and preparation of plans and specifications for preservation projects. For all of these reasons, the Commission is satisfied that the Petitioner’s request falls within the parameters 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 the HDC to help her client obtain approval for new windows and doors in accordance with GCA 2010-1, provided that she recuses from participating in all HDC matters involving her client. 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 § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinion: GCA 2010-1 A.O. 2014-15 A.O. 2013-42 A.O. 2013-29 A.O. 99-120 Keywords: Hardship Exception Historic Architect