Minutes June 22, 2010 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 22, 2010 The Rhode Island Ethics Commission held its 12th 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 22, 2010, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: Barbara R. Binder, Chair Frederick K. Butler Ross Cheit, Vice Chair John D. Lynch, Jr. J. William W. Harsch, Secretary Also present were Edmund L. Alves, Jr., Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Staff Attorneys Dianne L. Leyden and Esme DeVault; and Commission Investigators Steven T. Cross, Peter J. Mancini and Gary V. Petrarca. At 9:03 a.m., the Chair opened the meeting. The first order of business was a motion to approve minutes of the Open Session held on June 1, 2010. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Lynch, it was VOTED: To approve minutes of the Open Session held on June 1, 2010. AYES: John D. Lynch, Jr. and Ross Cheit. ABSTENTIONS: Barbara R. Binder, J. William W. Harsch and Frederick K. Butler. Chair Binder announced that the minutes would be voted upon at the next meeting. 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 Robert D. Frost, a member of the Charlestown Wastewater Management Commission. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was present. The Petitioner represented that he had held a license with the DEM for 25 years, although he no longer does so. He clarified that the White Knight system is a de-nitrification product used in septic system remediation and that it must be used in conjunction with a septic system previously approved by the DEM. He stated that he became interested in the product after installing it on his own property and had a conversation with the local distributor. The Petitioner stated that there was only one dealer in the northern part of the state. The Petitioner advised that, after his conversation with the distributor, he no longer had any involvement with discussion regarding the ordinance, nor has he had any discussions with the Wastewater Management Commission members on the side. He informed that a former Town Council member told him that he had a conflict. The Petitioner stated that there have been no votes on the ordinance and that the drafting has been done by one member of the Commission. He stated that there are numerous technologies on the internet for septic remediation, but none of them have been approved by the DEM yet. Chair Binder stated that the information presented does not change the analysis. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Butler, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Robert D. Frost, a Charlestown Wastewater Management Commission member. Commissioner Harsch commended the Petitioner for seeking guidance from the Commission. The Petitioner complimented Staff Attorney DeVault for the manner in which she captured the facts of his request. The next advisory opinion was that of Alice C. Brady, a guidance counselor for the North Providence School Department. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Harsch and duly seconded by Commissioner Butler, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Alice C. Brady, a guidance counselor for the North Providence School Department. The next advisory opinion was that of David E. Rizzolo, a member of the Town of Barrington Zoning Board of Review. Staff Attorney Leyden presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Leyden stated that the Petitioner has advised that he has a closing on the property today at 4:00 p.m. The Petitioner detailed the chronology of his offer on the property, noting that he and his spouse had been looking for land in Barrington for some time. He stated that they had to make an offer on the property due to the existence of another offer. He indicated that their offer was accepted and the seller chose a thirty day closing. Staff Attorney Leyden noted that the Petitioner had spoken with Commission Staff on a duty call and was advised to seek an advisory opinion. In response to Commissioner Cheit, the Petitioner stated that the Zoning Board handles quite a few cases involving small lots that are tight to setbacks and the street. He noted that these properties are mostly old summer cottages and the requirements are addressed in the Barrington Comprehensive Plan. He stated that one such requirement is that the property create a dialogue with the social aspect of the street through the use of bay windows and front porches, as he intends to do with this property. In response to Commissioner Cheit, the Petitioner indicated that the purchase price reflected the fact that these requirements would have to be met. He confirmed that the market value captured the idea that the property would be buildable in the future. In response to Commissioner Cheit, the Petitioner stated that he might not be able to build within the original footprint because the Town could have issues with the character of the property. In response to Chair Binder, the Petitioner informed that he would need a variance with respect to the front yard, side yard and the lot area. He noted that he would ask for R-10 zoning, but it would still be a substandard lot at 8,000 square feet. In response to Commissioner Cheit, he advised that the neighbors support his request and will appear before the Board in that regard. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Harsch, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to David E. Rizzolo, a member of the Town of Barrington Zoning Board of Review. The next advisory opinion was that of Michael Schnack, a member of the Jamestown Town Council. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was present. In response to Commissioner Cheit, Staff Attorney DeVault stated that, based on the totality of factors, it is not reasonably foreseeable that the actions the Town Council is taking at this time would impact the Petitioner being on the waiting list. The Petitioner represented that there would have to be a 100% turnover in membership in order for him to get off the list. In response to Commissioner Lynch, the Petitioner stated that the lease, which he believes is for a five or ten year period, came up for renewal during his time off the Council. In response to Commissioner Butler, the Petitioner advised that individuals are taken off the waiting list based upon their order on the list. He noted that current members can treat their boat slip as property and give it to a family member. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Harsch, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Michael Schnack, a member of the Jamestown Town Council. The next advisory opinion was that of Brandon Ruotolo, the Deputy Zoning Official for the Town of Smithfield. Legal Counsel Alves recused himself. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was present. Commissioner Cheit stated his agreement with the analysis and inquired whether having space in common and sharing utilities would always create a business associate relationship or whether it would create a rebuttable presumption, such as with a financial impact on one’s property. Staff Attorney DeVault replied that she would not state that it would always create a business association, but here the individuals are sharing space and bills. Upon motion made by Commissioner Butler and duly seconded by Commissioner Cheit, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Brandon Ruotolo, the Deputy Zoning Official for the Town of Smithfield. The next advisory opinion was that of Sam Bliven, a member of the Town of Westerly Building Code of Appeals Board. Staff Attorney DeVault presented the Commission Staff recommendation. The Petitioner was not present. Chair Binder questioned whether it is reasonably foreseeable that the Petitioner will be performing additional work for the property owner, given that he is adding an addition to his house. Staff Attorney DeVault replied that the Petitioner has specifically represented that he will not be performing such work. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Lynch, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Sam Bliven, a member of the Town of Westerly Building Code of Appeals Board. Chair Binder noted the favorable comments received from petitioners regarding Staff Attorney DeVault’s work. At 9:46 a.m., upon motion made by Commissioner Harsch 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)(2) and (4), to wit: a.) Motion to approve minutes of Executive Session held on June 1, 2010. b.) Motion to return to Open Session. At 9:50 a.m., the Commission returned to Open Session. Chair Binder reported that the Commission took no action in Executive Session. The next order of business was the Respondent’s Motion for a Continuance in the matter of In re: James Botvin, Complaint No. 2009-7. Commission Prosecutor Leyden advised that Attorney William Devereaux submitted, via facsimile, a Motion for a Continuance by which he requested a hearing date July and subsequently, via telephonic communication, requested an additional continuance due to having a scheduled vacation on July 20th. In response to Commissioner Cheit, she confirmed that it is a motion to continue the Respondent’s continuance on his motion to dismiss. In response to Commissioners Cheit and Lynch, Commission Prosecutor Leyden informed that she has no objection and that there is no time issue involved. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Lynch, it was unanimously VOTED: To grant Respondent’s Motion for a Continuance. The next order of business was General Commission Advisory (GCA) No. 8: Architect Members of State and Local Historic Preservation Commissions Appearing before their Respective Agencies. Staff Attorney DeVault provided the Commission with written public comment received on GCA 8. Jason Martin, Preservation Planner for the City of Providence, addressed the Commission and noted that he had submitted a letter asking for re-issuance of GCA 8. He stated that architects on these commissions are instrumental to their proper functioning, particularly with regard to the minutiae. He indicated that nine out of ten times architects, due to their extensive knowledge, point out things that make projects cheaper for people. Mr. Martin informed that the boards also have members who serve in other specialties relating to preservation that are even harder to find than architects, and he suggested that the Commission consider whether such individuals should also be eligible for an exception. Commissioner Cheit asked Mr. Martin to address the comment in Mr. Deller’s letter regarding the term “historic architect” being a misnomer. He inquired as to who qualifies as a historic architect and why the exception should not just be for architects in general. Mr. Martin replied that there is no specific classification, but his board is seeking someone who is certified under federal regulations with some experience in historic preservation. Commissioner Cheit stated that he is puzzled as to why the Commission needs to create a specific exemption for a group it cannot define. He asked what is wrong with the present situation where individuals recuse and seek guidance from the Commission on a case by case basis. Mr. Martin replied that there are time constraints within which his board must act. In response to Commissioner Cheit, he stated that his board has not had a problem with individuals who he believes should fall under the GCA but do not. Commissioner Cheit commented that he does not see what problem they are trying to solve, but he noted that he could understand there being an issue if there is a problem getting people to serve. Mr. Martin stated that there is a problem trying to get qualified architects to serve. In response to Chair Binder, he indicated that it is rare for a board member to appear before the board. He stated that there might be three or four recusals a year. Chair Binder inquired whether Mr. Martin believes that there are not enough individuals in the state who could represent clients before the board. Mr. Martin replied that there might be close to fifty such individuals in the state. He advised that a person could bring in an architect from Connecticut to represent them before his board. He stated that it is hard to build in a historic district without having an architect. He indicated that having common knowledge of the area makes the process smoother. He stated that a historic district, especially in Providence, would be subject to the strictest municipal zoning. Chair Binder questioned why a specific exemption needs to exist, rather than having those few persons who face this issue come before the Commission for hardship exceptions. Mr. Martin replied that he guesses that doing so would be acceptable, but there is a concern regarding timeframes. He noted that his board has forty-five days to act once it receives an application. Commissioner Cheit commented that their timeframe cannot be the main reason why the Commission would provide for this exemption. Mr. Martin stated that nothing has gone wrong with the exemption for the past twenty-five years so he does not see any reason to change it. Commissioner Butler asked whether the three or four individuals previously referenced as having recused themselves identify themselves as historic architects. He also inquired as to who makes that determination. Mr. Martin referred the question to Cornelis DeBoer, an architect serving on the Providence Historic District Commission. Mr. DeBoer stated that most of his practice involves working in historic districts or adding to historic structures but, legally, he is an architect. Commissioner Butler inquired, if an issue arose, how he would establish that he is covered under the exemption as a historic architect. Mr. DeBoer replied that it would just be by reputation. Commissioner Butler wondered if the exemption does anyone any good if they assume they are covered but would have to bring in people to testify as to their reputation as a historic architect. He inquired about opening it up to architects in general, to which Mr. DeBoer replied that there are over 200 registered in Rhode Island. Commissioner Cheit pointed out that if the Commission were to strike the word “historic” and make the exemption apply to all architects, the need for the special rule seems to disappear. Mr. Martin commented that it would help if the state law were changed to allow an architect who does not reside in the city to serve. Commissioner Cheit stated that that is the best argument yet as to why it is a unique pool. He indicated that he has pause because every public comment received was to not withdraw GCA 8. In response to Commissioner Cheit, Staff Attorney DeVault stated that it makes sense to withdraw the old GCA and draft a new one, which could be done at the same time so as not to leave people in limbo. She noted that she previously presented a draft of a new GCA on the issue and asked for further direction. Commissioner Butler commented that the current GCA leaves everyone in limbo because they assume that they are covered but there really is no standard. Commissioner Lynch suggested that the three individuals referenced by Mr. Martin might want to get an advisory opinion as to whether they are historic architects. Commissioner Butler stated that he assumes that they would have to bring in members of the public to testify as to their reputation, as well as present evidence that they advertise themselves as such. Staff Attorney DeVault noted that Mr. DeBoer commented on the adoption of the original GCA in 1988. Staff Attorney DeVault clarified that the public did not get a draft of the newly proposed GCA when the request for comment was noticed. She indicated that she could present a draft at the next meeting if she received guidance as to how to address the term “historic architect.” Chair Binder stated that she should review what historic districts look at as the required level of expertise for putting them on the board. Mr. Martin noted that state law defines membership relative to section 106 qualifications. Staff Attorney DeVault indicated that she could reference that standard. Commissioner Cheit suggested that alternatives could be proposed, but there does not need to be a commitment to a particular complete draft. Chair Binder indicated that the Commission would consider new draft proposals at the next meeting, but postpone its second vote to withdraw GCA 8. The next order of business was a review and discussion of Probable Cause. Senior Staff Attorney D’Arezzo stated that today’s discussion would serve as a starting point for further, more focused discussion of the issue and distributed brief written material. She presented an overview of the probable cause standard and a historical summary of the procedures by which the Commission and its predecessor agencies have made determinations of probable cause. She explained that the Respondent previously was not afforded the right to attend the probable cause hearing and discovery was not provided until the adjudication. She informed that the nine-member statutory Conflict of Interest Commission conducted ex parte probable cause hearings with the Prosecution presenting its Investigative Report and argument thereon. Senior Staff Attorney D’Arezzo advised that the confusing “preliminary investigation” language present in section 36-14-12(c) (3) refers back to the bifurcated investigative and adjudicative proceedings conducted by the fifteen-member Commission under the 1987 Public Law. She informed that the Commission consisted of a six-member Investigating Committee and a nine-member Adjudicative Committee. She stated that, pursuant to regulation, the probable cause hearing itself was bifurcated, with the Investigating Committee hearing the “preliminary investigation” presented by the Prosecutor and taking an initial vote as to whether it was preliminarily satisfied that probable cause exists. If it voted in the affirmative, the Respondent then had the right to attend a second hearing at which the final vote would be taken. Senior Staff Attorney D’Arezzo advised that Commission legal staff and investigators could subpoena witnesses and documents for the ex parte preliminary investigation. She noted that when the statutory composition of the Commission was changed in 1992, the references to “preliminary investigation” were deleted from the statute, with the exception of subsection 12(c)(3), where it apparently was retained in error. She expressed that the Respondent is now afforded full due process, including discovery prior to probable cause. She referenced two RI Supreme Court cases, La Petite Auberge and In re Commission on Judicial Tenure and Discipline, which state that the combination of investigative and adjudicative roles in a single administrative body does not amount to a denial of due process. Although the term “probable cause” is not defined by statute or regulation, Senior Staff Attorney D’Arezzo advised that Black’s Law Dictionary provides guidance. She indicated that probable cause is more than mere suspicion that the Respondent committed a knowing and willful violation of the Code, but less than by the certainty of the preponderance of the evidence. She stated that at probable cause the Commission considers whether, based upon the summary of the evidence presented, and without weighing the credibility of that evidence, it is more likely than not that the Respondent committed a knowing and willful violation of the Code. Commissioner Cheit expressed that it is not really so much of a question regarding the standard for probable cause, more evidence for than against, as it is a question of what can be considered. He commented that the Respondent is present at probable cause as a function of the additional due process afforded. He gave an example of a Respondent who wishes to present an affidavit in his defense at that stage and questioned whether it should be considered. In response to Chair Binder, Legal Counsel Alves advised that the probable cause standard is more than mere suspicion but less than by the full preponderance of the evidence required to at adjudication. Commissioner Cheit inquired if the Commission could weigh the credibility of the evidence at that stage, as well as if any deference should be afforded. Commissioner Lynch stated that the Commission needs to carve out what it is looking at for probable cause. Chair Binder questioned what the Respondent’s role is at that stage. Commissioner Lynch replied that the Respondent can argue that the Prosecution has not met its burden and submit uncontroverted evidence. He stated that the standard of preponderance of the evidence has to be more than the probable cause standard. He suggested looking at criminal case law applying the standard, in particular DUI refusal cases. Commissioner Lynch indicated that it might be a matter of legal review versus factual review, with the level of factual review at probable cause being is it enough for probable cause. He noted that Commissioner Cerullo has asked whether affirmative defenses apply at probable cause and he indicated his belief that they might. Commissioner Cheit pointed out that it would involve assessing the credibility of the evidence and witnesses. Commissioner Lynch stated that it would have to be uncontroverted. Commissioner Cheit gave the example of a Respondent saying it was not a knowing and willful violation. Commissioner Lynch replied that it would be OK to consider if the facts that caused you to be in violation were not known to you at the time. He provided the example of a Respondent who did not know that the person appearing before his board was his relative. He indicated that he does not believe that legal counsel’s advice on an issue is something to consider at probable cause. Commissioner Cheit expressed his concern regarding the lack of post probable cause discretion on the part of the Prosecution. He noted that in the criminal context you can initiate a charge and later drop it. He stated his concern that if the Commission has initiated a formal charge that the Prosecution cannot drop, the only options are settlement or adjudication. He voiced his concern that the Prosecution cannot drop bad cases in which it cannot meet its burden of proof. He suggested adding a mechanism by which the Prosecution could bring such matters to the Commission. Chair Binder questioned whether further investigation would suggest that the burden cannot be met, but she noted that the Commission completes its investigation prior to the probable cause hearing. Senior Staff Attorney D’Arezzo advised that since the RI Supreme Court issued its opinion in Clarke v. Morsilli more than ten years ago, the Commission has consistently interpreted it as requiring the completion of all investigation prior to the probable cause hearing. She expressed that this requirement is extremely onerous and the completion of all investigation prior to determining probable cause runs contrary to the natural order of proceeding. Senior Staff Attorney D’Arezzo informed that the Commission Staff has been discussing and researching the issue of conducting further investigation after probable cause, due to an issue being raised in a recent case where it is believed that further investigation would yield additional evidence in support of the findings of probable cause. She stated that it would frustrate the enforcement of the Code of Ethics if the Prosecution cannot continue to investigate beyond probable cause even when it learns that there is additional evidence relevant to a case. Chair Binder suggested that the issue might be addressed with legislation drafted for consideration during the next term. Legal Counsel Alves advised that does not see why the Prosecution could not file a motion to dismiss in cases in which probable cause has been found, but the evidence is not there for purposes of adjudication. Executive Director Willever noted that if the Prosecution found exculpatory information after probable cause it would present the Commission with a motion to dismiss. He commented that he does not have prosecutorial discretion. He also inquired what would happen if the Commission were to direct the Prosecution to go forward nonetheless. Commissioner Cheit suggested that the Commission could retain outside counsel. He indicated that the standard to get past probable cause is such that the Prosecution could prevail at probable cause but still not be sure that it could prove its case at adjudication. Legal Counsel Alves informed that probable cause is a lower standard. Commissioner Lynch disagreed. He stated that the adjudicative standard is by a preponderance of the evidence, which has to be higher than probable cause. Commissioner Cheit indicated that he would like Staff suggestions regarding whether there needs to be statutory changes, regulatory changes or otherwise. Chair Binder expressed that the Commission needs to clearly spell out the standards at each stage of proceeding, as well as what the Respondent’s role is at probable cause and what type of evidence it may consider. Commissioner Cheit inquired whether the Respondent may make a statement at probable cause and, if so, in what form. Chair Binder suggested that what the Commission does with the knowing and willful standard at probable cause should be spelled out in regulation. Commissioner Cheit questioned how many of these issues the Commission can address itself and how many would require legislative action. Chair Binder stated that the Commission does not want differing interpretations. She requested a Staff memorandum with recommendations for the August meeting. She informed that she has also asked Legal Counsel Alves to look into the issue. Commissioner Harsch noted that it would also be helpful to have Senior Staff Attorney D’Arezzo’s historical summary provided in written format. Commissioner Cheit agreed and noted that the discussion seems to indicate that there is less of a due process issue and more of an issue regarding the standards of proof and whether there is discretion. He suggested that the Staff also provide the due process case law that was referenced. The next order of business was the Director’s Report. Executive Director Willever advised that there are seven complaints and one advisory opinion request pending. He reported that there is one APA appeal pending and four formal APRA requests have been granted since the last meeting. The next order of business was New Business proposed for future Commission agendas and general comment from the Commission. There being none, at 11:05 a.m., upon motion made by Commissioner Butler and duly seconded by Commissioner Lynch, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary