Advisory Opinion No. 2013-29 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 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 appearing before his own board to help his client obtain a Certificate of Appropriateness. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of New Shoreham 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 appearing before his own board to help his client obtain a Certificate of Appropriateness, based upon General Commission Advisory 2010-1 and provided that he recuses from participating in all Historic District Commission matters concerning his client. The Petitioner is a member of the New Shoreham Historic District Commission (“HDC”),[1] having served continuously since his appointment in 2006. He states that it is an unpaid, volunteer position. He represents that he lives in New Shoreham (“Block Island”) at least one-third of the year and spends the rest of the year in Virginia. He represents that his residency in Virginia does not have a substantial impact upon his service on the HDC, given that he attends eleven (11) of the HDC’s twelve (12) meetings each year. The Petitioner states that he has been a registered architect for thirty-three (33) years. He is presently registered in Maryland, Virginia, West Virginia and Rhode Island, having been registered here since 2004. Notably, he informs that he is currently the only registered architect living at least one-third of the year on Block Island. He represents that he has a Bachelor of Science in Architectural Studies and a Master of Architecture from the University of Illinois. He states that he specializes in historic preservation, adaptive reuse, and the design of new structures with historic character allusions. He informs that he has authored historic structure reports and feasibility studies, and has provided condition assessment surveys for many nationally recognized historic buildings. He further states that approximately fifty percent (50%) of his work has been with historic structures. The Petitioner informs that the owner of the of the National Hotel (“National”) has asked him to assist in the conceptual design of new staff housing for hotel employees that would replace two (2) older mid-20th century structures. He represents that National is listed on the National Register of Historic Places and is located in the Old Harbor area of Block Island. He states that National is also located in the historic district. Given National’s location within the historic district, its owner must receive a Certificate of Appropriateness from the HDC prior to erecting, altering, restoring, moving or demolishing any structures on its property. Pursuant to the Town of New Shoreham Historic District Commission Guidelines, plans for new construction require both a preliminary review and a final review by the HDC before a Certificate of Appropriateness can be granted. The Petitioner represents that at the preliminary review the HDC will consider any proposed designs and at the final review the HDC will consider more specific plans including construction drawings. The Petitioner states that his representation of National, with respect to the HDC’s involvement, would consist of conducting a zoning analysis, preparing preliminary design plans and final construction drawings. He represents that he would be available to provide testimony to the HDC at the hearings for the Certificate of Appropriateness. He states that he would recuse from any HDC matters involving his client’s project until it is completed. Section 5(e) of the Code of Ethics strictly 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, irrespective of the potential for recusal, without first receiving a hardship exception from the Ethics Commission. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(b)(2). Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. As an initial matter, the Petitioner’s proposed conduct falls within section 5(e)’s prohibition of representing his client before a board of which he is a member. However, the Petitioner’s membership in the HDC and his work as an architect on historic structures may qualify him for a specific hardship exception outlined in General Commission Advisory (“GCA”) 2010-1 for “Historic Architects Who Are Members of Historic District Commissions.” This exception is based upon the 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.” The 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 to do 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. GCA 2010-1 was adopted on September 14, 2010, at which time the Commission withdrew the similar but outdated GCA No. 8: Architect Members of State and Local Historic Preservation Commissions Appearing before Their Respective Agencies.[2] Although the rationale for the exception remained the same, GCA 2010-1 improved upon its predecessor by including Regulation 36-14-5016 “Representing Oneself or Others, Defined,” which has been a part of a section 5(e) analysis since its adoption in October 2006, as well as a list of qualifications for a historic architect. In its most significant departure from its former position, the Commission stated in GCA 2010-1 that members of historic district commissions may not presume that the exception is applicable to their specific set of circumstances; rather, those members must seek an advisory opinion from the Ethics Commission prior to representing a client before their own board. GCA 2010-1’s narrow exception only applies to historic architects and does not apply to other architectural specialties. In order to ascertain whether someone is a historic architect, GCA 2010-1 incorporated the minimum professional qualifications for historic architecture as 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.[3] Thus, in order for GCA 2010-1 to be applicable to a particular set of facts, the Petitioner must make representations to establish that he is a qualified historic architect. See A.O. 99-120 (declining to grant a hardship exception to a member of the New Shoreham Historic District Commission, who was also 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). Although this is the first advisory opinion in which the Commission has had the occasion to apply GCA 2010-1, the Commission has previously considered analogous fact patterns and applied the similar reasoning contained in GCA No. 8. Most relevant to the instant matter is Advisory Opinion 2010-7,[4] which was issued to this same Petitioner regarding a nearly identical fact pattern. There, the Commission granted a hardship exception to the Petitioner, who was then a member of the HDC, permitting him to represent a private client before the HDC, based on General Commission Advisory No. 8 and provided that he recused from participating in all HDC matters concerning his client. See also A.O. 99-113 (granting a hardship exception to a member of the New Shoreham Historic District Commission, who was also an apprentice architect specializing in historic preservation, and permitting her to represent a client before the HDC, provided that she recused from participating in all HDC matters involving her client in accordance with GCA No. 8). In the present matter, the Petitioner is an architect who specializes in historic preservation. He represents that his work experience and education exceed the Secretary of the Interior’s minimum professional qualifications for a historic architect: he has a graduate degree in architecture; he is licensed to practice in Rhode Island and three (3) other states; he has thirty-three (33) years of experience as a registered architect; he has authored historic structure reports and feasibility studies; and approximately fifty percent (50%) of his work has been with historic structures. See Petitioner’s Curriculum Vitae (attached to his Advisory Opinion Request Letter and available at http://gilpinarchitect.com/profile.php). He further represents that he is the only registered architect living at least one-third of the year on Block Island. For all of these reasons, the Commission is satisfied that the Petitioner’s request falls squarely within the confines of GCA 2010-1. Accordingly, it is the opinion of the Ethics Commission that the Petitioner qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own board to help his client obtain a Certificate of Appropriateness, based upon GCA 2010-1 and provided that he recuses from participating in all HDC matters concerning his client. Notice of recusal shall be filed in accordance with § 36-14-6. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: G.C.A. 2010-1 A.O. 2010-7 A.O. 2010-6 A.O. 99-120 A.O. 99-113 Keywords: Hardship Exception Historic Architect [1] The HDC was established to: (1) Safeguard the heritage of the town by preserving districts and other designated structures of historic or architectural value in the town which reflect elements of the town’s cultural, social, economic, political, and architectural history; (2) Stabilize and improve values in such districts of designated structures; (3) Maintain and foster civic beauty; (4) Strengthen the local economy; (5) Promote the use of historic districts and other designated structures for the education, pleasure and welfare of the citizens of the town. Town of New Shoreham Rev. Ords. 1989, § 7-3. [2] GCA No. 8 was adopted on November 30, 1989, and withdrawn on September 8, 2010. [3] The National Park Service applies the Secretary of the Interior’s standards which can be found at: http://www.nps.gov/history/local-law/arch_stnds_9.htm [4] A.O. 2010-7 was approved on January 12, 2010, the discussion of which initiated the Commission’s review and revocation of GCA No. 8 and the issuance of GCA 2010-1 later that year.