Advisory Opinion No. 2021-35 Rhode Island Ethics Commission Advisory Opinion No. 2021-35 Approved: April 27, 2021 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 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 this 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, Maine, and New Hampshire. 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. The Petitioner 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 a 25-million-dollar adaptive reuse of the Elizabeth Mill in Warwick, and several historic renovation projects, including the Edward Bannister House for Brown University, the Caleb Greene House in Warwick for AAA New England, and the Saw Tooth Mill in Warwick. He further states that over thirty percent (30%) of his work involves historic structures. The Petitioner represents that he has been advising a client regarding a possible addition and renovation of the client’s 19th century home located in the Historic District of the Town of East Greenwich. The Petitioner states that, because the home is located within the Historic District, it is subject to the jurisdiction of the HDC. Thus, the client must receive a Certificate of Appropriateness from the HDC prior to any alterations to the exterior of the home. The Petitioner represents that he has, thus far, consulted the client on the local design and permitting procedures, including possible zoning relief, and the HDC conceptual and final approval process, and expects to later prepare the design plans and present the project before the HDC at the hearing for the Certificate of Appropriateness. The Petitioner adds that he has informed the client of his service as the chair of the HDC and the requirement to receive permission from the Ethics Commission to represent the client before the HDC. The Petitioner also expects to represent the client before the East Greenwich Zoning Board (“Zoning Board”) over which he does not have appointing authority. The Petitioner hopes to have a conceptual design ready to submit to the Zoning Board and the HDC in May for a June hearing. He states that he will recuse from HDC discussions and voting relative to these renovations and/or addition to the home. At this time, the Petitioner requests a hardship exception to represent the home owner before the HDC, pursuant to General Commission Advisory (“GCA”) 2010-1. 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. Section 5(e)(1)-(3); see also Commission Regulation 520-RICR-00-00-1.1.4 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. Upon receipt of a hardship exception, the public official must also advise the state or municipal agency in writing of the existence and the nature of his interest in the matter at issue; recuse himself from voting on or otherwise participating in the agency’s consideration and disposition of the matter at issue; and follow any other recommendations the Ethics Commission may make to avoid any appearance of impropriety in the matter. Section 5(e)(1). See, e.g., A.O. 2014-26 (granting a hardship exception to a member of the Barrington Zoning Board of Review (“BZB”) and permitting him to appear before the BZB to request a dimensional variance for his personal residence, but requiring that he recuse himself from participating and voting in the BZB’s consideration of his request for relief). 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 qualifications 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 six 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. 2017-38; A.O. 2015-44; A.O. 2014-15; A.O. 2013-42; A.O. 2013-29; and A.O.2010-7. 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] It is significant to note that the Ethics Commission has previously issued two similar advisory opinions to this Petitioner in which hardship exceptions were granted based upon the Petitioner’s status as a historic architect. Most recently, in Advisory Opinion 2019-43, the Ethics Commission concluded that this Petitioner qualified for a hardship exception, based upon GCA 2010-1, and permitted him to represent a client before the HDC in order to obtain a Certificate of Appropriateness to make modifications to the rear porch of the client’s single-family home located in the Historic District. Similarly, in Advisory Opinion 2017-27, the Ethics Commission granted a hardship exception to this Petitioner and permitted him to represent a client before the HDC to obtain a Certificate of Appropriateness in connection to a mixed-use redevelopment project at 461 Main Street in the Town of East Greenwich. 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. Pursuant to section 5(e)(1), and concurrent with his recusal, the Petitioner must inform the HDC and its members of his receipt of the instant advisory opinion and of his recusal in accord therewith. Notice of recusal shall 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. 2019-43 A.O. 2017-38 A.O. 2017-27 A.O. 2015-44 A.O. 2014-26 A.O. 2014-15 A.O. 2013-42 A.O. 2013-29 A.O. 2010-7 A.O. 99-120 Keywords Hardship Exception Historic Architect [1] On November 30, 1989, the Ethics Commission issued 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 April 8, 2021).