Advisory Opinion No. 2020-24 Rhode Island Ethics Commission Advisory Opinion No. 2020-24 Approved: April 28, 2020 Re: Gail Hallock Cyr, AIA QUESTION PRESENTED: The Petitioner, a member of the North Kingstown Historic District Commission, a municipal appointed position, who in her private capacity is an architect, requests 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 North Kingstown 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 North Kingstown Historic District Commission matters involving her client. The Petitioner is a member of the North Kingstown Historic District Commission (“HDC”), having served since her appointment in February 2012. She informs that the HDC is comprised of five members and one alternate member. The Petitioner represents that she received a Bachelor of Architecture from the Rhode Island School of Design in 1980 and she has been a registered architect in Rhode Island since 1988, specializing in residential properties. She states that she has extensive experience in historic preservation, as well as new home construction design. The Petitioner represents that the owner of a historic home located in the Historic Wickford Village has asked her to provide design services for the construction of an addition to his home. She states that the Village of Wickford is located within the North Kingstown Historic District and, therefore, the property is subject to the jurisdiction of the HDC. Accordingly, the owner must receive a Certificate of Appropriateness from the HDC prior to commencing any construction affecting the exterior appearance of a structure within the Historic District. The Petitioner states that, pursuant to HDC guidelines, the plans for the home addition will require both a conceptual conference and a final review by the HDC before a Certificate of Appropriateness can be granted. At this time, the Petitioner requests a hardship exception to represent this client before the HDC pursuant to General Commission Advisory (“GCA”) 2010-1. She states that her involvement would include drawing and designing the project plans and representing her client as his architect before the HDC at the hearings for the Certificate of Appropriateness. She represents that she will recuse from the HDC during its hearing of, and decision on, this matter and on any matters involving this client. Section 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. R.I. Gen. Laws § 36-14-5(e)(1), (2) & (3); see also Commission Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016). 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 are 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 in New Shoreham, because his occupation did not fall within the guidelines of a historic architect). In order 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 & A.O. 2013-29. In the present matter, the Petitioner represents that her work experience and education exceed the U.S. Secretary of the Interior’s minimum professional qualifications for a historic architect.[2] Furthermore, the Ethics Commission previously issued five advisory opinions to this same Petitioner, relative to her service on the HDC, after finding that it was satisfied in each case that the Petitioner had made sufficient representations to establish that she was qualified as a historic architect. See A.O. 2018-37; A.O. 2018-2; A.O. 2015-39; A.O. 2015-7; and A.O. 2014-24. For all of these reasons, the Ethics Commission is satisfied that the Petitioner’s request falls 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 appearing before her own board to help her client obtain a Certificate of Appropriateness in accordance with GCA 2010-1, provided that she recuses from participating in all HDC matters involving her client. Notice of recusal must be filed with the Ethics Commission consistent with section 36-14-6 of the Code of Ethics. 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. 2018-37 A.O. 2018-2 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. 99-120 Keywords: Hardship Exception Historic Architect