Advisory Opinion No. 2020-26 Rhode Island Ethics Commission Advisory Opinion No. 2020-26 Approved: June 2, 2020 Re: Gregory Maxwell, AIA 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 himself 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 himself before his own board. The Petitioner has been a member of the East Greenwich Historic District Commission (“HDC”) since 2015. In his private capacity, the Petitioner is an architect, registered in Rhode Island since 2009. The Petitioner represents that his personal residence, which he has owned since 2013, is located within the East Greenwich Historic District and, thus, subject to the jurisdiction of the HDC. He states that he would like to install a new garden shed with dimensions ten (10) feet by twenty-two (22) feet and a roof-mounted solar array on his property and that, in order to do so, he must receive Certificates of Appropriateness from the HDC prior to erecting, altering, restoring, moving or demolishing any part of his historic property. The Petitioner explains that he intends to use the shed to store tools, a lawn mower, and other personal items. He further explains that he would like to personally present the drawings and specifications relative to the installation of the proposed new shed to the HDC in order to seek approval and issuance of a Certificate of Appropriateness. However, for the solar array, he would like to engage a local installation company that would present the proposal to the HDC. The Petitioner states that he will recuse from HDC’s discussions and decision-making relative to his applications. Based on this set of facts, the Petitioner seeks the guidance of the Ethics Commission regarding whether he qualifies for a hardship exception to represent himself and/or authorize another person to represent him, before the HDC. The Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which he is a member, by which he is employed, or for which he is the appointing authority. R.I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”). Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, these prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Moreover, while many conflicts can be avoided under the Code of Ethics by recusing from participation, such recusal is insufficient to avoid section 36-14-5(e)’s (“section 5(e)”) prohibitions against self-representation absent an express finding by the Ethics Commission that a hardship exists. Upon receiving a hardship exception, the public official is required to recuse from participating in his agency’s consideration and disposition of the matter at issue. Section 36-14-5(e)(1)(ii). The public official must also “[f]ollow any other recommendations that the Ethics Commission may make to avoid any appearance of impropriety in the matter.” Section 36-14-5(e)(1)(iii). Hardship Exception – R.I. Gen. Laws § 36-14-5(e)(1) The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing himself before an agency of which he is a member. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by the Petitioner herein justify a finding of hardship to permit him to appear, either personally or through a representative, before the HDC. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered some of the following factors in cases involving real property: whether the subject property involved the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to his public office or was recently acquired; whether the relief sought involved a new commercial venture or an existing business; and whether the matter involved a significant economic impact. The Ethics Commission may consider other factors and no single factor is determinative. Recently, the Ethics Commission applied the hardship exception in an analogous situation. In Advisory Opinion 2020-15, the Ethics Commission granted a hardship exception to a member of the Exeter Zoning Board of Review to allow him to represent himself before his own board in order to seek a dimensional variance to construct a shed at his personal residence that he acquired prior to his appointment to the Zoning Board. The Ethics Commission opined, however, that the petitioner was required to recuse from participation and voting during the Zoning Board’s consideration of his request for relief, consistent with section 36-14-6. See also A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member and opining that she could represent herself before her own board in order to seek a dimensional variance from the side-yard setback requirement to build a storage shed at her personal residence that she acquired prior to her appointment to the Board). In the present matter, the Petitioner seeks to install a new shed and a solar array at his personal residence, his ownership of which predates his appointment to the HDC. Further, the relief sought is personal, not commercial. Based upon the above representations, it is the opinion of the Ethics Commission that the totality of the circumstances justifies making an exception to section 5(e)’s prohibitions against self-representation. Accordingly, the Petitioner may appear, either personally or through a representative, before the HDC to seek Certificates of Appropriateness for the installation of a new shed and a solar array at his personal residence. However, the Petitioner must recuse from participation and voting when the HDC considers his applications. Notice of recusal must be filed with the Ethics Commission consistent with section 36-14-6. Hardship Exception – GCA 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.” The Ethics Commission has also 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 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 apply to a particular set of facts, the Petitioner must make representations to establish that he is a qualified historic architect. For example, the Ethics Commission granted six 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 by her representations regarding her education, work experience in historic preservation, and her qualifications as a historic architect. A.O. 2020-24; 2018-37; 2018-2; A.O. 2015-39; A.O. 2015-7 & A.O. 2014-24. In the present matter, the Petitioner represents that his work experience and education meet the United States Secretary of the Interior’s minimum professional qualifications for a historic architect.[2] The Petitioner represents that he has a Bachelor’s degree in Art History from the University of Texas at Austin, where he also completed a graduate level course in Historic Preservation, and a Master of Architecture degree from Rhode Island School of Design. He further represents that he has been a licensed architect in Rhode Island since 2009. The Petitioner states that, although his current practice has been largely non-specialized, he has previously provided oversight and prepared drawings and specifications for several historic buildings including the Chorus of Westerly, St. Teresa’s Church in Pawtucket, the Peerless Building in Providence, and two late 19th-century homes, one designed by Charles Bevins located in Jamestown, Rhode Island and the other designed by William Emerson located in Gosnold, Massachusetts. Furthermore, the Ethics Commission previously issued two advisory opinions to this same Petitioner, relative to his service on the HDC having been satisfied with his representations that he was qualified as a historic architect. See A.O. 2018-10 & A.O. 2017-51. 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 himself before the HDC, in accordance with GCA 2010-1, to seek Certificates of Appropriateness for the installation of a new shed and a solar array at his personal residence, provided that he recuses from participating in all HDC matters involving the aforementioned matters. Notice of recusal shall be filed consistent 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. 2020-24 A.O. 2020-15 A.O. 2018-37 A.O. 2018-10 A.O. 2018-2 A.O. 2017-51 A.O. 2015-39 A.O. 2015-7 A.O. 2014-24 A.O. 2011-34 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 commission without triggering a violation of 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 an 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. 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 May 22, 2020).