Re: Derek A. van Lent
QUESTION PRESENTED
The petitioner, the New Shoreham Historic District Commission (HDC) Chairperson, a municipal appointed position, requests an advisory opinion as to (1) whether he may serve as Chair on matters that have no direct business connection to his work outside the HDC; (2) whether he may participate in matters involving either the Island Design Collaborative, a Limited Liability Corporation or its individual members, given that he is a member of the Collaborative; (3) whether he may present projects to the HDC for either his own property or for which he is a design consultant; (4) whether he may present projects to other state and local boards for his own property or for which he is a design consultant; (5) whether a professional recognition for historic work would benefit his position on the HDC; and (6) how he should handle projects that come to him in his private capacity after the HDC approval process is complete.
RESPONSE
It is the opinion of the Rhode Island Ethics Commission, that the petitioner, the New Shoreham Historic District Commission (HDC) Chairperson, a municipal appointed position, may continue to serve as Chairperson of the HDC provided that he does not participate, in his capacity as Chairperson or as a member for the HDC, in matters involving the Island Design Collaborative, a Limited Liability Corporation or its individual members, given that he is a member of the Collaborative and he is a business associate of the other members of the LLC. This necessarily includes Island Design Collaborative projects even if he is not involved in the project either professionally or financially. When recusing, the petitioner may not participate in the discussion and vote on the matter and must complete a conflict of interest statement in accordance with Section 6 of the Code of Ethics, filing the original with the Historic District Commission and a copy with the Ethics Commission. Additionally, the petitioner may not present matters to the HDC for himself or his clients, unless the Commission grants a specific hardship exception. This does not preclude him from appearing before other state and local boards with certain limitations. Finally, the petitioner may do business with persons who have already received approval from the HDC provided that he does not in any way use his office to solicit or obtain such business.
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 in the public interest. Substantial conflict is defined as a "direct monetary gain or a direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. R.I. Gen. Laws § 36-14-5(d). The Code provides that a business associate may not appear before the public official unless the associate first advises the agency of the nature of his/her business relationship with the public official and the public official recuses himself from voting on or otherwise participating in the consideration or disposition of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective”. Finally, the Code of Ethics provides that while serving and for a period of one year after a person has officially terminates his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served unless a showing of hardship is demonstrated to the Ethics Commission. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4).
The petitioner owns his own landscape architecture business and recently formed an LLC, Island Design Collaborative (IDC), with two other members of the Historic District Commission and a Town Councilor. He asks whether he may continue to serve as Chairperson of the HDC on projects that have no direct business connection to his work, as well as projects done by the IDC or its members. Previously, the Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position the Commission has required that the official recuse him or herself if the interests of the organization would be affected by an action to be taken by his or her public agency. See A.O. 99-113 (concluding that member of the New Shoreham HDC should recuse on matters concerning the IDC or its members) and A.O.96-46 (concluding that members of the Providence Historic District Commission (PHCD) who are also Board of Directors members of the Providence Preservation Society Revolving Fund or its corporate parent, the Providence Preservation Society, were prohibited from voting or otherwise participating in the PHDC's reconsideration of an application involving the Providence Preservation Society Revolving Fund). Here, the Commission concludes that the petitioner may not participate in the consideration of applications submitted by members of IDC or for IDC projects. As a member of the limited liability corporation, the petitioner has a business association with that corporation and its other members that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Notice of recusal should be filed with both the Historic District Commission and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. (Questions 2 & 3)
On November 30, 1989, the Commission issued General Commission Advisory 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 commission 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). The Commission recently issued an opinion to another member of the New Shoreham Historic District Commission, A.O. 99-113, finding that the member may appear before her own board because she is an apprentice architect specializing in historic preservation. Here, however, the petitioner is a landscape architect and states that he has worked in many historic districts during his twenty-year career. While the Commission is certain that the petitioner’s qualifications make him an asset to Block Island’s efforts in historic preservation, his occupation does not fall within the guidelines or purpose of General Commission Advisory 8. Therefore, under existing law and past decisions of the Commission, the petitioner’s profession has not been recognized as an exception to the prohibitions set out in state law. As such, the petitioner should not appear before his own Board either on behalf of a client or for himself without a hardship exception granted by the Commission. (Questions 3 & 5).
Petitioner next asks whether there are any limitations on his appearances before other state and local boards. The Code of Ethics would prohibit the petitioner’s appearance for compensation before other boards over which the HDC exercises fiscal or jurisdictional control. See Commission Regulation 5008. This would include, for example, budgetary or appointment authority. Additionally, if the petitioner took positions adversary to the Town or the HDC relating to HDC actions, other provisions of the Code might be implicated. See A.O. 97-119 Absent these circumstances, the petitioner may appear before other boards on behalf of clients. (Question 4)
Finally, the petitioner asks how to handle projects that are presented to him in his private capacity after the HDC process is complete. The Commission has previously concluded that public officials may participate in matters where no business association currently exists between the parties and/or when it is not foreseeable that they would engage in business projects within the near future. See A.O. 98-141. See also A.O. 95-107 (concluding that Board of Professional Engineers member should not accept projects that were previously those of a disciplined engineer given that he had participated in the disciplinary matter and since it was unresolved and pending with the Superior Court). Therefore, (1) assuming the petitioner does not reasonably foresee that he will be offered a business opportunity concerning an applicant before him when he participates in the vote, (2) that he in no way uses his position as HDC member or confidential information that came into the possession of the HDC that would put him at an advantage in his private endeavors, and (3) the matter before the HDC is completed and resolved, i.e. no appeals pending, the Code of Ethics would not prevent him from accepting work from those former applicants. (Question 6)
Code Citations:
36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-5(f)
36-14-6
36-14-7(a)
Related Advisory Opinions:
GCA 8
99-113
99-64
99-56
96-46
99-35
99-33
98-156
98-141
98-108
98-76
98-71
98-44
98-16
98-10
97-119
96-76
96-75
96-58
96-54
96-46
95-107
95-81
95-8
95-59
94-39
Keywords:
Business Associate
Revolving Door