Minutes May 31, 2007 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION May 31, 2007 The Rhode Island Ethics Commission held its 10th meeting of 2007 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street, 8thFloor, Providence, Rhode Island, on Thursday, May 31, 2007, 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 M. Gramitt and Dianne L. Leyden; Commission Investigators Steven T. Cross and Peter J. Mancini; and Tracy Teixeira, Commission Administrative Staff. At approximately 9:10 a.m., the Chair opened the meeting. The first order of business was that of Respondent’s Motion to Dismiss or in the Alternative Motion to Stay in the matter of In re: Joseph A. Montalbano, Complaint Nos. 2006-4 & 2006-11. A stenographer was present to transcribe the hearings and the transcripts are available for review at the Commission Offices. *Senior Staff Attorney D’Arezzo arrived at 9:20 a.m. Attorney Max Wistow addressed the Commission and inquired as to the purpose of the hearing scheduled for June 19th in the Irons matter if the Commission makes a similar determination in this case. He argued that Counts 1& 2 expressly depend on showing how Senator Montalbano voted on two occasions, which violates the speech and debate clause. He asserted that the alleged failure to provide a section 6 statement expressly relates to his vote and violates the 5th amendment. He also stated that it is void for vagueness under the due process clause. He discussed Holmes v. Farmer, 47 A.2d 976 (1982) and stated that the courts construe the speech and debate clause liberally. Attorney Wistow argued that Holmes construes it as immunity from suit, as well as a testimony privilege. He noted that it also protects the individual legislator against actions taken by a majority of other legislators. Attorney Wistow asserted that evidence of the vote itself cannot be introduced to prove bribery. He advised that the U.S. Attorney’s Manual states that the speech and debate clause provides that legislative acts shall not be questioned in any other place, in criminal and civil litigation, and provides absolute immunity. He clarified that it is not a defense, but a prohibition against charging his client in the first place. Attorney Wistow indicated that Counts 6 & 7 depend on showing his failure to submit a section 6 statement. He argued that the requirement of showing the vote is prohibited and seeks to compel self-incrimination with a separate punishment for failure to file the statement. Commissioner Cheit inquired how long the Commission would hear argument from Respondent’s counsel and suggested that they allow for a reasonable amount of time. Chair Lynch expressed his belief that it is in the best interest of all to allow him all the time he needs. Commissioner Segovis stated that he was not aware that the court imposes time limits, but suggested that they listen to all of his argument. Attorney Wistow noted that the court notices time limits in advance. Attorney Wistow argued that the section 6 filing requirement is vague and submitted Commissioner Butler’s completed statement in the Irons matter in support thereof. He stated that his motion to dismiss refers to four advisory opinions issued to others, all of which make it clear that municipalities are not “business associates.” He indicated that he received the Prosecution’s reply yesterday and read aloud therefrom with reference to it being “reasonably foreseeable” that the Respondent would receive a financial benefit from his performance of future legal work for the town. He suggested that the Prosecution “sandbagged” the Respondent as to what is actually being alleged and read aloud several excerpts from the Investigative Report. As to financial disclosure, he maintained that the municipality does not fit within the Code’s definition of a municipal agency. He also argued that the Commission can only impose penalties as provided by law and the legislature adopted penalties only for violations of chapter 14. He indicated that he is mindful that the Respondent listed other municipalities on his statements, but asserted that he was not required to do so and may have misconstrued the requirement. Finally, he represented that he set forth argument regarding the failure to turn over investigatory records in his memorandum to preserve it. *At 10:30 a.m. the Commission took a brief recess and it reconvened at 10:44 a.m. Commission Prosecutor Leyden addressed the Commission and stated that the Commission does not have the authority or jurisdiction to decide constitutional issues. She cited to the 1999 Advisory Opinion to the Governor, 732 A.2d 55, where the Court opined that the Commission may not interpret the constitution and the judicial branch is the interpreter of the constitution. She suggested that she would not argue the merits when the appropriate forum is the courts. She noted that the speech and debate clause cases cited by the Respondent all are prior to the 1986 constitutional amendment authorizing and empowering the Commission. Commission Prosecutor Leyden argued that the general assembly created the Code of Ethics, which applies to all elected and appointed officials. She indicated that the two constitutional provisions can be read together in harmony. Commission Prosecutor Leyden rebutted Attorney Wistow’s argument that the Prosecution’s theory of the case changed after receiving his memorandum. She emphasized that she never alleged that the town and the Respondent are business associates or that the town is a business. She stated that the Respondent financially benefited by receiving income from town legal work. She disagreed that the town is not a municipal agency and noted that the correct citation is to Regulation 2001(1)(9). Commission Prosecutor Leyden asserted that it would be up to the courts to decide if section 6 is unconstitutional, but suggested that it is not, noting that the requirement is for the official to complete the statement before taking action. She asked the Commission to deny the motion to dismiss and alternatively the motion to stay. Commissioner Binder expressed that she is very comfortable with the Prosecution’s municipal agency definition, but less comfortable with whether the Commission may resolve constitutional issues. She noted that the 1999 opinion really addressed separation of powers. Commission Prosecutor Leyden replied that to apply the speech and debate clause the Commission needs to apply two provisions of the constitution and determine whether they are inconsistent. In response to Commissioner Cheit, she indicated her belief that ultimate arbiter means exclusive. Commissioner Cheit stated that such language does not mean the Commission has no role, only that its role is not final. Commission Prosecutor Leyden stated that it is up to the Commission to determine whether it can hear the matter, but ultimately the courts will decide. Commissioner Cheit indicated that he is at a loss as to how the Commission can not make a decision. Commissioner Kirby suggested that the Commission lacks jurisdiction based on constitutional grounds, but believes they ultimately have to make a decision. Commissioner Cheit stated that he would be more comfortable ruling on it after hearing the substantive arguments. Commission Prosecutor Leyden argued that when the general assembly adopted the Code in 1986 it chose to regulate itself and the speech and debate clause does not apply. In response to Commissioner Butler’s inquiry regarding the legislative history, Commissioner Segovis commented that it was very clear when the Commission was created that it had to be constitutionally mandated. Commissioner Weavill inquired why two similar cases are proceeding on different tracks and what would happen if the Commission takes action on one. Commission Prosecutor Leyden replied that Commission Prosecutor D’Arezzo can explain the issues regarding her case, but that she saw this as a delay tactic. Commissioner Kirby noted that the matter before them is a motion to dismiss, not a demand for jury trial. Attorney Wistow represented that he submitted a twenty-one page brief on the jury trial issue. Commission Prosecutor Leyden noted that the Commission received the brief on May 29th and to hear the jury trial issue today would violate the Open Meetings Act. She advised that the matter would be before them on June 5th. In response to Commissioner Kirby, Commission Prosecutor Leyden acknowledged that the investigation determined that the Respondent was paid for his services by the Town of West Warwick. She added that she feels uncomfortable discussing the merits of the case at this juncture. In further response to Commissioner Kirby, she indicated that he was issued a check by a town department. Commissioner Cheit stated that he does not agree that the Commission cannot decide constitutional issues and believes that they need a full response to the issues raised. Commissioner Segovis suggested that they have a right to respond and state that they deny the motion and deny the stay. Commissioner Cheit suggested that the Prosecution file a brief responding to the constitutional arguments. Commissioner Binder expressed that she does not understand how the Commission can vote without a full briefing. Chair Lynch noted that the Prosecution filed its brief. Commissioner Cheit stated that he disagrees with the Prosecution’s position that the Commission does not have the authority to decide. Attorney Wistow advised that, unlike the demand for jury trial, the motion to dismiss is based on the constitutional prohibition against proceeding to trial based upon the speech and debate clause. He reiterated that Holmes provides that the clause protects the individual legislator from personal attack from a majority within the legislature itself and the 1986 amendment was passed with the speech and debate clause in place. He suggested that there would be no harm in staying the matter. Commissioner Kirby asked for clarification whether the Respondent was seeking a stay first and asking them not to entertain the motion to dismiss and if it would only pertain to Counts 1, 2, 6 & 7. Attorney Wistow replied that it would not apply to financial disclosure. Commission Prosecutor objected to splitting the case up and asked that a decision be made today. Legal Counsel Managhan advised that the general rule is that administrative agencies do not have the authority to decide constitutional issues. She represented that the Commission would be within the bounds of its Article III, section 8 powers if it decides to go forward and deny the motion to dismiss and find that the Code gives it the jurisdiction to decide those matters. She cited to Doe v. RI Ethics Commission where the Court found that the Commission is subject to enacted statutes and any challenge to their validity must be presented to the Court. She opined that it is not within the Commission’s purview to render a section of its Code unconstitutional. Commissioner Cheit inquired why this matter was not on a briefing schedule like the Irons case. Commissioner Segovis commented that the Commission does not have final authority and stated that he is not clear on why the Commission would hear a constitutional argument. Commissioner Cheit suggested that he may get to that same point but needs to see a brief first. Commissioner Kirby suggested that the Commission may determine the issues under the facts presented and noted that the Respondent has an affirmative duty to raise the issues. Attorney Wistow commented that the courts will reverse the Commission if it is wrong on the other issues, but as to speech and debate it would be wrong to have a trial in the first place, which would result in a direct injury that can never be remedied. Commissioner Cheit expressed that he would like to have the motion to stay granted in order to brief the constitutional issues, or specifically the speech and debate issue. In response to Commissioner Segovis, Commissioners Cheit, Binder and Butler indicated that they would like more information. Commissioner Kirby stated that he wished to see more information on the speech and debate issue. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Binder, there was further discussion. Commissioner Segovis suggested a brief recess to allow the Prosecution to respond. *The Commission recessed at 11:46 a.m. and reconvened at 11:59 a.m. Commission Prosecutor Leyden advised that the Commission Prosecutors met with Attorneys Wistow and Tarantino and the parties propose continuing the proceedings and to report back to the Commission on June 19th. She further advised that the attorneys would meet in the interim to discuss how the issues should be addressed and seek the Commission’s approval as to their proposed course on June 19th. Commissioner Cheit inquired if briefing would be limited to the speech and debate issue. Prosecutor Leyden suggested that it would be appropriate to report on that issue on June 19th. Commissioners Cheit and Butler withdrew their original motions. Commissioner Cheit made a motion to proceed in the manner described by Prosecutor Leyden to continue the matter until June 19th, which was seconded by Commissioner Butler. Legal Counsel Managhan clarified that the motion to dismiss would be continued. Upon the motion made by Commissioner Cheit and duly seconded by Commissioner Butler, it was VOTED: To continue the matter and allow the parties to report back on June 19th as to what they decide to do about briefing the issue, and the Respondent’s motion to dismiss remains pending. AYES: George E. Weavill, Jr., James C. Segovis, Frederick K. Butler, Ross Cheit and Barbara R. Binder. NOES: James Lynch, Sr. Commissioner Weavill inquired if it would be appropriate for the Commission to establish ground rules with respect to the presentation of argument. Chair Lynch noted that would be done beforehand. At approximately 12:05 a.m, upon motion made by Commissioner Weavill and duly seconded by Commissioner Kirby, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, __________________ George E. Weavill, Jr. Secretary