Advisory Opinion No. 2019-43 Rhode Island Ethics Commission Advisory Opinion No. 2019-43 Approved: July 16, 2019 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 client 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 client before his own board, in accordance with General Commission Advisory 2010-1, provided that he recuses from participation in all Historic District Commission matters involving his client. 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, Pennsylvania, and Maine. He represents that he earned a Bachelor of 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 five years, his firm and he have completed more than fifteen historic adaptive reuse projects, including adaptive reuse of the Elizabeth and Sawtooth Roof Mills, both in Warwick, and several historic renovation projects, including the Edward Bannister House for Brown University and the Caleb Greene House in Warwick. He further states that approximately thirty percent (30%) of his work involves historic structures. The Petitioner represents that, since early June of 2019, he has been advising a client regarding the modification of the rear porch of the client’s single family home located at 55 Greene 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. Accordingly, the client must receive a Certificate of Appropriateness from the HDC prior to filing for a building permit. The Petitioner represents that he is currently preparing to file an application for a Certificate of Appropriateness with the HDC, the hearing for which is scheduled for July 10, 2019. He explains 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 hearing for the Certificate of Appropriateness. He states that to date he has not been present for any HDC matters involving his client. At this time, the Petitioner requests a hardship exception to represent his client before the HDC, pursuant to General Commission Advisory (“GCA”) 2010-1. 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”). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. Section 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 his client before a board of which the Petitioner 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 his particular situation, the Petitioner must make representations to establish that he 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 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 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.[2] 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 client before his own board, in accordance with GCA 2010-1, provided that he recuses from participating in all HDC matters involving his 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(e) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions G.C.A. 2010-1 A.O. 2014-15 A.O. 2013-42 A.O. 2013-29 A.O. 99-120 Keywords Hardship Exception Historic Architect [1] On November 30, 1989, the Ethics Commission issued General Commission Advisory (“GCA”) No. 8, “Architect Members of State and Local Historic Preservation Commissions Appearing Before Their Respective Agencies,” allowing architects who specialize in historic preservation and who serve on historic district commissions to represent clients before their respective commissions without violating the Code of Ethics. In 2010, after considering public comment, and in response to overwhelming support for continuing the use of the exception, the Ethics Commission replaced GCA No. 8 with GCA 2010-1 entitled “Historic Architects Who Are Members of Historic District Commissions.” [2] 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 accessed on July 1, 2019).