Advisory Opinion No. 2020-28 Rhode Island Ethics Commission Advisory Opinion No. 2020-28 Approved: July 14, 2020 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 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 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 represents that it is an unpaid, volunteer position. The Petitioner states that in his private capacity he has been a registered architect in Rhode Island since 2007 and is presently also registered in Massachusetts, Connecticut, Pennsylvania, and Maine. The Petitioner represents that his personal residence, which he has owned since 2009, is located within the East Greenwich Historic District and, thus, subject to the jurisdiction of the HDC. He states that he would like to replace the windows of his home and, in order to do so, he must receive a Certificate of Appropriateness from the HDC prior to erecting, altering, restoring, moving or demolishing any part of his historic property. The Petitioner explains that he would be the specifier and the project manager who would engage the appropriate subcontractor to procure, deliver and install the windows. The Petitioner further explains that he would like to personally present the design and specifications to the HDC, so that he can answer any specific technical and/or aesthetic questions as an expert. The Petitioner states that he will recuse from the HDC’s discussions and decision-making relative to his application. 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 “follow 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). The Ethics Commission has also carved out a specific hardship exception to section 5(e) outlined in General Commission Advisory (“GCA”) 2010-1 for “Historic Architects Who Are Members of Historic District Commissions”[1] allowing such architects[2] to represent private clients or act as expert witnesses before the historic district commissions on which they serve.[3] The Ethics Commission previously granted two separate hardship exceptions pursuant to GCA 2010-1 to this same Petitioner, permitting him to represent clients before the HDC, after concluding that it was satisfied by Petitioner’s representations regarding his education, work experience in historic preservation, and his qualifications as a historic architect. See A.O. 2019-43; A.O. 2017-27. Here, however, the Petitioner seeks to represent himself, rather than a client, before the HDC and his proposed conduct falls squarely within section 5(e)(1)’s prohibition on representing himself before an agency of which he is a member. Thus, 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. See A.O. 2020-26 (granting a hardship exception to an East Greenwich Historic Commission member, allowing him to represent himself before his own commission in order to seek Certificates of Appropriateness to install a new shed and roof-mounted solar array on his property, the ownership of which predated his appointment to the Historic District Commission); A.O. 2020-15 (granting a hardship exception to an Exeter Zoning Board of Review member, allowing 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, but requiring him to recuse from participation and voting during the Zoning Board’s consideration of his request for relief); A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member, allowing her to 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 , but requiring her to recuse from participation and voting during the Zoning Board’s consideration of her request for relief In the present matter, the Petitioner seeks to replace the windows on his historic home, the ownership of which predates his appointment to the HDC. Further, the relief sought is personal, not commercial. Based upon the Petitioner’s representations, and the review of the relevant provisions of the Code of Ethics and prior advisory opinions, 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 representing oneself before one’s own board. Accordingly, the Petitioner may appear, either personally or through a representative, before the HDC to seek a Certificate of Appropriateness for the replacement of the windows 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. 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. 2020-26 A.O. 2020-15 A.O. 2019-43 A.O. 2017-27 A.O. 2011-34 A.O. 99-120 Keywords Hardship Exception Historic Architect