Advisory Opinion No. 2010-7 Rhode Island Ethics Commission Advisory Opinion No. 2010-7 Re: W. Douglas Gilpin, Jr., FAIA QUESTION PRESENTED The Petitioner, a member of the Town of New Shoreham Historic District Commission, a municipal appointed position, who is also an architect in private practice, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing a private client before the Historic District Commission. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Town of New Shoreham Historic District Commission, a municipal appointed position, who is also an architect in private practice, is not prohibited from representing a private client before the Historic District Commission, based on General Commission Advisory No. 8, provided that he recuses from participation in all matters concerning his client, in accordance with R.I. Gen. Laws § 36-14-6. The Petitioner has been a member of the Town of New Shoreham Historic District Commission (“Historic District Commission”) since 2006. He states that he is also an architect in private practice and specializes in historic preservation, adaptive reuse, and the design of new structures with historic character allusions; in this regard, he has authored historic structure reports, feasibility studies, and has provided condition assessment surveys for many nationally recognized historic buildings. He represents that recently he was contacted by a potential client in regards to providing architectural services, specifically, some exterior aesthetic improvements and the addition of a second floor to a structure located within the Historic District Overlay within the Town of New Shoreham. The Petitioner states that the project is situated on a one-tenth acre site in the vicinity of the Town Hall, and was built in 1960 as a simple wood frame, one-story dwelling on a concrete block foundation, which in the Petitioner’s professional opinion, is not an historic character-defining structure. Pursuant to the Town of New Shoreham Historic Commission Guidelines, “before a property owner may authorize or commence construction, alteration, repair, removal or demolition of any existing structure or its appurtenances within a historic district, the owner must first apply for and receive a Certificate of Appropriateness from the Commission” and that the “Commission shall require the owner to submit information which is reasonably necessary to evaluate [the] proposed construction, alteration, repair, removal or demolition including but not limited to: 1. plans; 2. drawings; 3) photographs; 4. or other information.” Id. at Chapter 7, § 5(A), (D). Given this set of facts, the Petitioner asks whether the Code of Ethics prohibits him from providing the exterior elevations of the structure for review and comment upon by the Historic District Commission, given that he is a member of that entity. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws § § 36-14-5(a), 36-14-7(a). Additionally, he may not accept outside employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents. See R.I. Gen. Laws § 36-14-5(d). Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1) and (2). Absent an express finding of hardship by the Commission, section 5(e)'s prohibition continues while the official remains in office, and for a period of one year thereafter. R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code. In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, the prohibitions in that section are absolute. As an initial matter, the Petitioner's proposed conduct falls squarely within section 5(e)'s prohibition on representing oneself or any other person before a municipal agency of which he is a member. The Petitioner wishes to appear before the Historic District Commission on behalf of a private client to present the specifications of a project, specifically to provide the exterior elevations of the structure, for review and comment by that entity. However, the Commission has previously addressed this precise set of factual circumstances and issued advice upon them. On November 30, 1989, the Commission issued General Commission Advisory No. 8, Architect Members of State and Local Historic Preservation Commissions Appearing Before Their Respective Agencies. The Commission concluded that “architects who specialize in historic preservation and who serve on historic district commissions may represent clients before their respective commission without triggering a violation of the Code of Ethics.” The Commission based this finding on “the fact that historic architects are relatively few in number and that historic architects are essential to the proper functioning of historic district commissions.” These findings, in effect, were based on the hardship exception to R.I. Gen. Laws § 36-14-5(e). This Petitioner's situation falls squarely within the parameters of that general commission advisory. He is an architect specializing in historic preservation and is a member of the Block Island Historic District Commission. Given these facts, we opine that the Petitioner may appear before the Historic District Commission on behalf of a private client to present the specifications of a project, specifically to provide the exterior elevations of the structure, for review and comment by that entity. See A.O. 99-113 (opining that a member of the New Shoreham Historic District Commission, who was also an apprentice architect specializing in historic preservation, may represent clients before the Historic District Commission if she recuses on those matters, based on General Commission Advisory No.8). However, the Petitioner must recuse from participation in discussion and voting on any such matters as a Historic District Commission member pursuant to R.I. Gen. Laws § 36-14-6. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as an Historic District Commission member, from appearing on behalf of a private client before the Historic District Commission. This opinion does not address whether any other statutes, rulings, policies, charter provision, or ordinances prohibit such activity. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Related Advisory Opinions: General Commission Advisory No. 8 A.O. 99-113 Keywords: Private Employment