Minutes January 15, 2008 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION January 15, 2008 The Rhode Island Ethics Commission held its 2nd meeting of 2008 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street , 8thFloor, Providence, Rhode Island, on Tuesday, January 15, 2008, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: James Lynch, Sr., Chair James C. Segovis Barbara R. Binder, Vice Chair Frederick K. Butler George E. Weavill, Jr., Secretary* Ross Cheit Richard E. Kirby Also present were Kathleen Managhan, Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Staff Attorneys Jason Gramitt, Dianne L. Leyden and Esme DeVault; and Commission Investigators Steven T. Cross, Peter J. Mancini and Steven Branch. At approximately 9:09 a.m., the Chair opened the meeting. The first order of business was a motion to approve minutes of the Open Session held on January 2, 2008. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Binder, it was unanimously VOTED: To approve the minutes of the Open Session held on January 2, 2008. ABSTENTION: James C. Segovis. The next order of business was advisory opinions. The advisory opinions were based on draft advisory opinions prepared by the Commission Staff for review by the Commission and were scheduled as items on the Open Session Agenda for this date. The first advisory opinion was that of Michael A. Salvadore, a member of the Johnston Board of Canvassers. The petitioner was present. Staff Attorney DeVault presented the Commission Staff recommendation. *Commissioner Weavill arrived at 9:15 a.m. Upon motion made by Commissioner Segovis and duly seconded by Commissioner Binder, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Michael A. Salvadore, a member of the Johnston Board of Canvassers. The next order of business was a Review of Exemption for Professor Wayne Velicer pursuant to the R.I. Public/Private Partnership Act. Professor Velicer was present with URI General Counsel, Louis Saccoccio. Staff Attorney Gramitt provided the background relative to the approval process and informed that, while the Commission does not have veto authority, it may require URI to hold a public hearing before the Board of Governors for Higher Education. In response to Commissioner Cheit, Attorney Saccoccio stated that the documents were presented to the Board of Governors and they are public. Commissioner Cheit stated his belief that the proposal has been exposed to enough sunshine. Commissioner Segovis expressed that there are sufficient checks and balances. Commissioner Weavill noted that Professor Velicer began the application process in February but there was no substantive review until October. Attorney Saccoccio stated that Professor Velicer responded to requests for additional information. In response to Commissioner Weavill, Professor Velicer advised that the research utilizes a unique software platform. Attorney Saccoccio added that the software is made available to the university without charge for its usage and with the provision of some technical support. Chair Lynch advised that no motion is needed. The next advisory opinion was that of John Raposa, a member of the Tiverton Planning Board. Staff Attorney DeVault presented the Commission Staff recommendation. She advised that the petitioner represented that he would make an effort to be present, but he was scheduled to supervise a time sensitive installation at a local hospital. Staff Attorney DeVault noted that the matter had been continued to obtain additional information. She stated that she spoke with the petitioner’s father regarding his service on the Yacht Club’s Board of Trustees and the petitioner subsequently adopted his father’s representations. In response to Commissioner Butler, she indicated that it would not make any difference whether the father was on the Board of Trustees or Board of Directors since both would constitute business associations with the Club under the Code. In response to Commissioner Binder, Staff Attorney DeVault advised that the petitioner represented that his father would not be financially impacted, no matter what the outcome of the decision by the Planning Board. Commissioner Binder noted that if their request is denied, the Trustees would sell the existing property and purchase new property on which to build or distribute the assets to the shareholders. Staff Attorney DeVault replied that the petitioner’s father specifically represented that he is not compensated as a Trustee and he is not a shareholder. Commissioner Cheit stated his belief that the Commission is too narrowly focused on financial impact and voiced concern regarding the citation to the prior Barrington opinion. Commissioner Segovis agreed that the prior opinion did not involve financial impact. Staff Attorney Gramitt advised that he drafted the prior opinion and even if there were a financial impact to the Little League, such as being allowed to use a field, the League was the spouse’s business associate. Commissioner Segovis questioned whether the petitioner’s father would be involved in making strategic decisions as a Trustee and expressed that the petitioner should be present to answer questions. Commissioner Kirby expressed concern that the petitioner could be faced with approving a more expensive option and a cheaper option regarding the Club. He also agreed with Commissioner Segovis regarding a Trustee’s involvement in long term planning. Staff Attorney DeVault noted that the petitioner is not himself a member. Commissioner Kirby stated that the petitioner could be in a position to save his father money if the public vote goes a particular way. Commissioner Weavill suggested that the three Trustees may be the actual applicants before the Town because they hold title to the property. Commissioner Cheit indicated that he agrees with Staff’s legal analysis, but noted that it is constrained by the limits of the Code. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Binder, it was VOTED: To issue an advisory opinion to John Raposa, a member of the Tiverton Planning Board. AYES: Frederick K. Butler, Ross Cheit and James Lynch, Sr. NOES: George E. Weavill, Jr., James C. Segovis, Richard E. Kirby and Barbara R. Binder. Commissioner Cheit commented that he nonetheless does not believe the petitioner should vote on the issue. No advisory opinion issued due to a lack of five affirmative votes. Chair Lynch directed the Staff to withdraw the safe harbor letter issued to the petitioner. Staff Attorney Gramitt informed the Commission that many Planning Board members have associations with the Club and the Commission will likely receive a request from the Board for an opinion relative to application of the Rule of Necessity. Commissioner Segovis clarified that although the Commission is not giving the petitioner an opinion, it is not stating that he cannot act. The next advisory opinion was that of Cynthia Nebergall, a member of the Tiverton Planning Board. The petitioner was present. Staff Attorney DeVault presented the Commission Staff recommendation. In response to Commissioner Cheit, Staff Attorney DeVault agreed that there are benefits to being a Club member, but she stated that the benefits are the same for all general members, as the Commission addressed in its prior opinion regarding YMCA membership. Commissioner Cheit expressed that the Planning Board’s action could eliminate those benefits and a member would never vote to eliminate his or her own benefits. He indicated that the Staff’s legal analysis is probably correct but that the petitioner’s participation would still seem to present a conflict, even if permitted by the Code. Commissioner Kirby stated that this non-profit organization confers a benefit to its membership and noted that a member who is a public official could approve a plan to save the Club money, thereby assuring that his fees do not increase. Commissioner Cheit indicated that the Code also contains language regarding impairment of independence of judgment and stated that he could not approve the opinion. Commissioner Segovis inquired whether the ability to invite guests to the Club would have significant value. The petitioner replied that any such value would be very minimal and it could not be compared to providing guests with tickets to professional sporting events. She added that her family does not have guests to the Club, which they utilized for sailing lessons for their kids. She added that she does not believe that the Club has reached its membership cap. Upon motion made by Commissioner Butler and duly seconded by Commissioner Cheit, it was VOTED: To issue an advisory opinion to Cynthia Nebergall, a member of the Tiverton Planning Board. AYES: Frederick K. Butler and James Lynch, Sr. NOES: George E. Weavill, Jr., James C. Segovis, Richard E. Kirby, Ross Cheit and Barbara R. Binder. No advisory opinion issued due to a lack of five affirmative votes. The next advisory opinion was that of Thomas L. Dwyer, the former Associate Director of the Department of Children, Youth and Families. Staff Attorney DeVault presented the Commission Staff recommendation and advised that the petitioner could not be present due to a family illness. Commissioner Cheit disclosed that he knows the petitioner but believes that he can participate fairly and objectively. He indicated that he would not have a problem with the petitioner’s participation if he can do so without talking to anyone at DCYF. Upon motion made by Commissioner Segovis and duly seconded by Commissioner Binder, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Thomas L. Dwyer, the former Associate Director of the Department of Children, Youth and Families. The next advisory opinion was that of Dawn P. Thurman, an Assessment Clerk for the Town of Middletown Tax Assessor’s Office. Staff Attorney Leyden informed that the petitioner is presently out of the state but she represented that she could be present at the next meeting if there are any questions. Commissioner Weavill advised that he has questions for the petitioner. Upon motion made by Commissioner Weavill and duly seconded by Commissioner Segovis, it was unanimously VOTED: To continue the advisory opinion request to January 29, 2008. At approximately 10:10 a.m., upon motion made by Commissioner Segovis and duly seconded by Commissioner Weavill, it was unanimously VOTED: To go into Executive Session pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4), to wit: a.) Motion to approve minutes of Executive Session held on January 2, 2008. b.) In re: Suzanne Vadenais, Complaint No. 2007-7 c.) In re: Joseph S. Larisa, Jr., Complaint No. 2007-6 d.) In re: Robert V. Rossi, Complaint No. 2007-10 e.) Status Update: William V. Irons v. Rhode Island Ethics Commission, Superior Court C.A. No. 07-6666 f.) Motion to return to Open Session. The Commission reconvened in Open Session at approximately 12:21 p.m. The next order of business was a motion to seal minutes of the Executive Session held on January 15, 2008. Upon motion made by Commissioner Kirby and duly seconded by Commissioner Binder, it was unanimously VOTED: To seal the minutes of the Executive Session held on January 15, 2008. Chair Lynch reported that the Commission took the following actions in Executive Session: 1) approved the minutes of the Executive Session held on January 2, 2008; 2) voted to dismiss In re: Suzanne Vadenais, Complaint No. 2007-7, upon a finding of no probable cause; 3) voted in the matter of In re: Joseph S. Larisa, Jr., Complaint No. 2007-6, that probable cause exists that the Respondent violated R.I. Gen. Laws § 36-14-5(e)(4); 4) voted to dismiss In re: Robert V. Rossi, Complaint No. 2007-10, for insufficient allegations of a violation of the Code of Ethics; and 5) received a status update from Staff regarding William V. Irons v. Rhode Island Ethics Commission. The next order of business was a Discussion of the Commission Regulatory Agenda for 2008. Commissioner Kirby suggested that the matter be continued to the next meeting, given the late hour. Chair Lynch and Commissioner Butler concurred. Commissioner Binder indicated that she has some additional items for consideration. Staff Attorney Gramitt suggested that members with further items for consideration contact him directly before the next meeting. The next order of business was the Director’s Report. Executive Director Willever advised that there are six complaints and seven advisory opinions pending. He reported that one formal APRA request has been granted since the last meeting. He referenced Staff Attorney Gramitt’s memorandum regarding the Commission Investigators’ instruction at the MunicipalPoliceAcademy and reported that approximately one half of all active duty Providence police officers have received ethics training from the Commission Staff. Chair Lynch complimented the Investigators on their educational efforts. The next order of business was New Business. There being none, at approximately 12:29 p.m., upon motion made by Commissioner Weavill and duly seconded by Commissioner Butler, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ George E. Weavill, Jr. Secretary