Minutes March 25, 2008 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION March 25, 2008 The Rhode Island Ethics Commission held its 7th 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, March 25, 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 V. Murray Barbara R. Binder, Vice Chair Frederick K. Butler Ross Cheit., Secretary Deborah M. Cerullo SSND Richard E. Kirby Also present were Kathleen Managhan, Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Staff Attorneys Jason Gramitt, Dianne L. Leyden and Esme DeVault; and Commission Investigators Steven T. Cross and Steven Branch. At approximately 9:10 a.m., the Chair opened the meeting. The Chair acknowledged the presence of two former Commissioners, in order to publicly recognize them for outstanding years of service: James C. Segovis, Ph.D., and George E. Weavill, Jr. The former Commissioners were called forward and presented with plaques to honor them in recognition of years of outstanding dedication. The Chair expressed the gratitude of the whole Commission and its staff for their years of service and noted that both Commissioners served beyond their original terms, with George E. Weavill, Jr. serving from 2001-2008 and James C. Segovis, Ph.D. serving from 2002-2008. George E. Weavill then spoke and stated that his six and one-half years of service were enjoyable and further stated that dealing with all of the other Commissioners was a good experience. He also acknowledged the hard work of the staff and Providence Journal reporter Bruce Landis. Next, James C. Segovis, Ph.D. spoke and stated that he was humbled by the years of service of James Lynch, Sr., Richard E. Kirby and James V. Murray. He further stated that he was proud of the accomplishments of the Commission and recognized the hard work of the staff and the investigators. The first order of business was a motion to approve minutes of the Open Session held on March 11, 2008. Upon motion made by Commissioner Binder and duly seconded by Commissioner Murray, it was unanimously VOTED: To approve the minutes of the Open Session held on March 11, 2008. ABSTENTION: Deborah M. Cerullo SSND. The next order of business was a Public Hearing as to Proposed Regulations. The Chair inquired if anyone had signed up to make public comment. Staff Attorney Gramitt stated that other than the three letters included in the Commission’s materials, no one had. A stenographic transcript of the proceedings is available at the Commission Offices. The first proposed regulation considered was Regulation 36-14-7004 - Officers of Public Agencies. Staff Attorney Gramitt stated that this regulation addresses the issue raised from the recent Crowley Complaint. He stated that the crux of the regulation is that the compensation or stipend must be already in effect prior to the member’s vote or it must be waived. Commissioner Kirby inquired as to the timeframe in which the stipend must already have been in effect, asking if it could have been enacted as recently as the week prior to the vote. Attorney Gramitt stated that, as the Regulation is written now, it could be, so long as the election occurs after. Upon motion made by Commissioner Kirby and duly seconded by Commissioner Binder that there is a need for the adoption of the regulation, there is no alternative approach that would be as effective and less burdensome to affected persons, and the regulation does not overlap or duplicate any other state regulation, there was discussion. Commissioner Kirby stated that the recent filing of a complaint on this issue identified a loophole that this regulation seeks to close. Commissioner Cheit asked that Staff Attorney Gramitt address the letters received from Operation Clean Government and the Rhode Island League of Cities and Towns commenting on the proposed regulation. Staff Attorney Gramitt responded that the drafting of the proposed regulation has addressed the concerns of those comments and now reads as proposed by those entities. It was then unanimously VOTED: To make the finding, pursuant to the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq., that the need for the adoption of the proposed Regulation 36-14-7004, exists. Upon motion made by Commissioner Butler and duly seconded by Commissioner Binder, it was unanimously VOTED: To adopt Regulation 36-14-7004 as to Officers of Public Agencies. The next proposed regulation considered was Regulation 1014.1 - Commission Deliberations. Staff Attorney Gramitt stated that this regulation is intended to clarify and add procedural safeguards to allow the Commission to deliberate in private without the presence of any other persons while in Executive Session pursuant to R.I. Gen. Laws § 42-46-5. Staff Attorney Gramitt stated that he did consult with the Department of the Attorney General, which office advised that pursuant to R.I. Gen. Laws § 42-46-5, the Commission is allowed to exclude all other parties when in deliberations in Executive Session. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Butler, that there is a need for the adoption of the Regulation, there is no alternative approach that would be as effective and less burdensome to affected persons, and the regulation does not overlap or duplicate any other state regulation, it was unanimously VOTED: To make the finding, pursuant to the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq., that the need for the adoption of the proposed Regulation 36-14-7004, exists. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Murray, it was unanimously VOTED: To adopt Regulation 1014.1 as to Commission Deliberations. The next proposed regulation considered was 36-14-17008 – Leadership Positions with Not-For-Profit Organizations. Staff Attorney Gramitt stated that this proposed regulation is a legacy from a long past complaint filed against an official who failed to disclose his membership on the board of a non-profit organization. He stated that that complaint was dismissed and a moratorium on accepting complaints based on a failure to disclose leadership positions with not-for-profit organizations was enacted. Staff Attorney Gramitt then proceeded to read the letter submitted by the Rhode Island League of Cities and Towns commenting on the proposed regulation and noted that if the Commission wished to make the suggested change, it would not be substantive and therefore would not need to be re-noticed for hearing. Commissioner Cheit stated that he thought using the word “officers” would be more precise, if it would not constitute a substantive change. Staff Attorney Gramitt inquired whether it would suffice if Line 4 of the Regulation read as “all executive officers.” Commission Legal Counsel Managhan noted that the Commission should vote first on the finding as to the required criteria, then move to amend the language of the regulation. George E. Weavill, Jr. then stood to offer comment. He stated that he just wanted to reinforce the necessity for this regulation and note his belief that it is very important given the fact that some of the largest corporations in the state are non-profit. Commissioner Butler inquired whether a director or manager, such as an Executive Director, but a person not on the Board of Directors, would be included in this regulation. Staff Attorney Gramitt said yes. Commissioner Butler then asked if “not-for-profit” was intended to include only formal entities registered as such. Staff Attorney Gramitt said yes. Commissioner Binder asked if the regulation would include members of a Board of Trustees. Staff Attorney Grammit said yes. Commissioner Kirby suggested that any leadership position with a fiduciary component could be covered. Staff Attorney Gramitt suggested that Line 3 could be amended to include “board of directors, board of trustees and equivalent fiduciary positions” and that Line 4 could be amended to read “all executive officer positions.” Upon motion made by Commissioner Butler and duly seconded by Commissioner Binder that there is a need for the adoption of the Regulation, there is no alternative approach that would be as effective and less burdensome to affected persons, and the regulation does not overlap or duplicate any other state regulation. it was unanimously VOTED: To make the finding, pursuant to the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq., that the need for the adoption of the proposed Regulation 36-14-17008, exists. A motion was then made by Commissioner Murray, and duly seconded by Commissioner Cheit, to adopt Regulation 36-14-17008, with the amendment to Line 3 to insert “trustees” and the amendment to Line 4 to insert “officers.” Christine Lopes of Common Cause then spoke to ask if the language as to “equivalent fiduciary positions” would also be added to Line 3. Commissioner Binder then said she would move to amend Line 3 to add the “equivalent fiduciary positions” language. Commissioner Murray then seconded this motion and withdrew his original motion. Commissioner Cheit withdrew his original second. Upon motion made by Commissioner Binder and duly seconded by Commissioner Murray, it was unanimously VOTED: To adopt Regulation 36-14-17008 – Leadership Positions with Not-For-Profit Organizations, as amended. The next proposed regulation considered was Regulation 1012.1 - Stenographic Recording of Commission Proceedings. Staff Attorney Gramitt stated that the genesis of this regulation came out of a recent complaint when a respondent’s counsel showed up at a hearing with a stenographer. There was no provision to address the circumstance at that time, but the Commission did allow it. This proposed regulation seeks to clarify the procedure in such circumstances and allows a respondent to have a stenographic record created at proceedings to which the respondent otherwise has a right to attend, provided that the respondent gives the Commission seven days notice prior to the scheduled hearing. Staff Attorney Gramitt further stated that the proposed regulation allows the Commission to withdraw permission if the conditions precedent are not met or the recording will create delay or interfere with the proceeding. Staff Attorney Gramitt stated that the proposed regulation also clarifies that the stenographic record will be made at the respondent’s expense and the respondent will provide the Commission with a copy of the record at his or her own expense. Staff Attorney Gramitt then read the comment provided by the Rhode Island League of Cities and Towns on this regulation, which states that the League would like the regulation amended such that the Commission is responsible for reimbursing the respondent for costs associated with the transcript. Commissioner Cheit stated that he thought that respondents who are having stenographic recordings made should provide the Commission with a copy at their expense. Commissioner Murray agreed. Commissioner Kirby also agreed, but asked what if a respondent’s counsel decided 48-72 hours in advance of a proceeding that they wanted to have it stenographically recorded. Commissioner Murray suggested that the seven days prior notice could always be waived by the Commission. Staff Attorney Gramitt stated that the agenda is set the week before the meeting, so that notice of a respondent’s intent to have a proceeding stenographically recorded would need to be provided by at least the Friday before the scheduled meeting. Commissioner Cheit suggested that two business days would suffice. Staff Attorney Gramitt suggested that an amendment to Line 7 to read “not less than two (2) business days” in place of seven days would be less burdensome on affected parties than the current requirement and would not therefore require renoticing. Upon motion made by Commissioner Butler and duly seconded by Commissioner Binder that there is a need for the adoption of the Regulation, there is no alternative approach that would be as effective and less burdensome to affected persons, and the regulation does not overlap or duplicate any other state regulation, it was unanimously VOTED: To make the finding, pursuant to the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq., that the need for the adoption of the proposed Regulation 1012.1 - Stenographic Recording of Commission Proceedings, exists. The Chair suggested making a motion to approve the regulation with the amended language to Line 7 to read “not less than two (2) business days.” Upon motion made by Commissioner Cheit and duly seconded by Commissioner Binder, it was unanimously VOTED: To adopt Regulation 1012.1 - Stenographic Recording of Commission Proceedings, as amended. Staff Attorney Gramitt stated that he would make an appointment with the Secretary of State’s office to file the newly adopted regulations tomorrow, so that they will become effective twenty days from tomorrow. George E. Weavill Jr. then stood to comment that the matters undertaken by the Commission today were very important, but noted that his biggest disappointment was having to leave the Commission before action was taken regarding the class exception. James C. Segovis, Ph.D. then spoke in concurrence. Commissioner Kirby spoke to say he wished to publicly acknowledge how much he had enjoyed working with both Mr. Weavill and Dr. Segovis and that he agrees about the class exception, but thinks it needs to be work-shopped first. At approximately 10:00 a.m., upon motion made by Commissioner Binder and duly seconded by Commissioner Butler, it was unanimously VOTED: To go into Executive Session pursuant to R.I. Gen. Laws § 42-46-5(a) and (4), to wit: a.) Motion to approve minutes of Executive Session held on March 11, 2008. b.) In re: Susan D. Menard Complaint No. 2008-1 c.) Motion to return to Open Session. The Commission reconvened in Open Session at approximately 10:17 a.m. Chair Lynch reported that in Executive Session the Commission took the following actions: 1) voted to approve the minutes of the Executive Session held on March 11, 2008, and 2) voted that Complaint No. 2008-1, In re: Susan D. Menard, alleges sufficient facts to support a knowing and willful violation of the Code of Ethics. The next order of business was a Motion to Seal minutes of the Executive session held on March 25, 2008. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Butler, it was unanimously VOTED: To seal the minutes of the Executive Session held on March 25, 2008. The next order of business was the Director’s Report. Executive Director Willever stated his thanks on behalf of himself and the staff to Mr. Weavill and Dr. Segovis for their years of service on the Commission. He next reported that there are seven complaints, one preliminary investigation, seven advisory opinions and one APRA request pending. The next order of business was New Business. There being none, at 10:21 a.m., upon motion made by Commissioner Kirby and duly seconded by Commissioner Butler, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ Ross Cheit Secretary