Minutes June 1, 2010 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 1, 2010 The Rhode Island Ethics Commission held its 11th meeting of 2010 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street, 8thFloor, Providence, Rhode Island, on Tuesday, June 1, 2010, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: Ross Cheit, Vice Chair Edward A. Magro James V. Murray Mark B. Heffner * Deborah M. Cerullo SSND John D. Lynch, Jr. Also present were Edmund L. Alves, Jr., 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 Gary V. Petrarca. At 9:04 a.m., the Vice Chair opened the meeting. The first order of business was a motion to approve minutes of the Open Session held on May 18, 2010. Upon motion made by Commissioner Cerullo and duly seconded by Commissioner Lynch, it was unanimously VOTED: To approve minutes of the Open Session held on May 18, 2010. ABSTENTION: Edward A. Magro. *Commissioner Heffner arrived at 9:05 a.m. 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 Gail Chatfield, Deputy Town Clerk for the Town of Scituate. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Murray and duly seconded by Commissioner Lynch, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Gail Chatfield, Deputy Town Clerk for the Town of Scituate. The next order of business was a Legislative Update. Staff Attorney Gramitt informed that last Wednesday he attended hearings before the House and Senate on companion resolutions which would allow the issue of the Commission’s jurisdiction over legislators to go before the voters. He noted that the House Judiciary Committee had previously heard testimony on Speaker Fox’s resolution and the matter was before it again solely for a vote. He advised that Representatives David Segal and Brian Newberry moved for passage of the resolution. Representatives Newberry and DaSilva expressed reservations concerning limitations on floor debate, but they noted that this could be addressed through a floor amendment. Staff Attorney Gramitt stated that the vote to recommend passage was unanimous and the matter is assigned for vote before the House tomorrow. Staff Attorney Gramitt informed that the Senate Committee on Constitutional and Regulatory Issues also heard testimony on Senator Lenihan’s companion resolution. He stated that representatives of Common Cause, Operation Clean Government and the Rhode Island League of Women Voters all spoke in favor of the bill, while the Rhode Island ACLU testified as to its continuing opposition to the Commission’s jurisdiction over legislators. Staff Attorney Gramitt advised that he testified on behalf of the Commission, as he had previously done before the House Judiciary Committee. In response to Vice Chair Cheit, Staff Attorney Gramitt indicated that there had been a complaint against former Representative McManus that related, among other things, to his input on a matter during floor debate. He stated that Representative McManus did recuse on the vote and the complaint was dismissed early on. In response to Commissioner Heffner, Staff Attorney Gramitt advised that, in discussing his reservations regarding the resolution, Representative Newberry referenced his concerns regarding free speech. Staff Attorney Gramitt indicated that there seems to be an understanding that legislators should not introduce or vote on legislation benefiting a business associate, but their ability to talk about it appears to be a sticking point. He noted, however, that a legislator can talk about it in committee under the public forum exception. Commissioner Heffner suggested that the Commission Staff have a brief statement prepared that would address the issue of what the bill would or would not do. Vice Chair Cheit expressed that it might be useful if Staff Attorney Gramitt had the ability to give input on the issue. He stated his understanding that the legislators’ concerns had related to the possibility of their speech being used against them in any other way, other than by the Commission. Staff Attorney Gramitt informed that the issue had been raised at hearing by Representative Goodwin, who provided an example involving Roger Williams Hospital, which resulted in his clarifying that a legislator would still be protected from private suit. Commissioner Heffner expressed that individual legislators might be confused on that point. He suggested that a one page list stating what the resolution would and would not do, including examples, could be useful in forestalling an undesirable amendment. The next order of business was the Director’s Report. Executive Director Willever informed that there are seven complaints and one Superior Court appeal pending. He reported that there is no backlog of advisory opinion requests. He advised that non-filing complaints will be issued as a result of ongoing financial disclosure reviews. The Commission recessed at 9:23 a.m., at which time Commissioner Murray left the meeting after filing notice of recusal in the matter of In re: James Botvin, Complaint No. 2009-7. At 9:44 a.m., upon motion made by Commissioner Cerullo and duly seconded by Commissioner Magro, 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 May 18, 2010. b.) In re: James Botvin, Complaint No. 2009-7 c.) Motion to return to Open Session. At 11:16 a.m., the Commission returned to Open Session. In response to Commission Prosecutor Leyden, Vice Chair Cheit informed that in the matter of In re: James Botvin, Complaint No. 2009-7, the Respondent’s Motion to Dismiss should be scheduled for hearing on June 22nd. He clarified that the Commission would not take testimony, but would hear argument on the motion. Commission Prosecutor Leyden stated that she does not object to the Respondent’s submission of additional supporting papers. The next order of business was a motion to seal minutes of the Executive Session held on June 1, 2010. Upon motion made by Commissioner Cerullo and duly seconded by Commissioner Heffner, it was unanimously VOTED: To seal minutes of the Executive Session held on June 1, 2010. Vice Chair Cheit reported that the Commission took the following actions in Executive Session: 1) approved minutes of the Executive Session held on May 18, 2010, by unanimous vote, with Commissioner Magro abstaining; and 2) voted 3-2 to find that probable cause exists to support a knowing and willful violation of the Code of Ethics in the matter of Complaint No. 2009-7, In re: James Botvin, with Commissioners Heffner, Magro and Cheit voting in the affirmative and Commissioners Lynch and Cerullo voting in the negative. The next order of business was New Business proposed for future Commission agendas and general comment from the Commission. There being none, at 11:18 a.m., upon motion made by Commissioner Cerullo and duly seconded by Commissioner Lynch, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary