Minutes June 30, 2009 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 30, 2009 The Rhode Island Ethics Commission held its 10th meeting of 2009 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 30, 2009, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: Barbara R. Binder, Chair Deborah M. Cerullo SSND Ross Cheit, Vice Chair Edward A. Magro J. William W. Harsch, Secretary Mark B. Heffner* James V. Murray Also present were William J. Conley, 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 9:02 a.m., the Chair opened the meeting. The first order of business was approval of minutes of the Open Session held on June 16, 2009. Chair Binder noted a correction to the minutes relative to the advisory opinion issued to Michael P. Jolin, wherein she stated that the opinion was limited to the unique facts presented and does not establish precedent. Upon motion made by Commissioner Magro and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To approve minutes of the Open Session held on June 16, 2009, as amended ABSTENTION: Ross Cheit. The next order of business was that of 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 Joseph G. Miller, Esq., on behalf of the Health Services Council and its Chair, Robert J. Quigley, DC. Staff Attorney Gramitt presented the Commission Staff recommendation. Attorney Joseph G. Miller clarified that he is present on behalf of Dr. Quigley, in both his individual and official capacity. He noted that the Council’s by-laws suggest that a recused member may be counted toward the eleven member quorum. He advised that he agrees with the draft opinion but does not want to see a member who recuses and sits as a “potted plant” for quorum purposes subsequently face potential prosecution under the Code of Ethics. *Commissioner Heffner arrived at approximately 9:09 a.m. Commissioner Cheit indicated that the Commission is being asked to clear up something that does not fall within its jurisdiction. Attorney Miller asked if the Commission could tell him if a Council member who recused and sat for the quorum would be subject to prosecution. Commissioner Cheit replied that it is a hypothetical issue that is not ripe for consideration. He suggested that the Council may want to seek an opinion from the Attorney General if there is a quorum issue. In response to Attorney Miller, Commissioner Cheit clarified that the Commission cannot issue an opinion without an existing case or controversy before it. Attorney Miller stated that he thought the request letter made it clear that his concern is whether a person who recuses but sits for the quorum could be subject to prosecution. In response to Chair Binder, Staff Attorney Gramitt informed that he previously spoke with Attorney Miller regarding rule of necessity issues. He stated that the Staff generally advises individuals that if they recuse in Open Session with public access then they may remain in the room, but if they recuse on an Executive Session matter they must leave the Executive Session while that matter is under consideration. Attorney Miller represented that he is trying to protect a member of the Council from being the subject of an ethics complaint. Commissioner Cheit noted that the Commission is being presented with a very abstract question without a fact pattern, and he advised that quorum questions are not within the Commission’s jurisdiction. In response to Attorney Miller, Chair Binder explained that the meeting is not being stenographically recorded but that the meeting minutes will constitute the record. Attorney Miller stated his understanding that the Commission has indicated that a person can sit, for quorum purposes, as a “potted plant” on a matter in which he has recused and the Commission would not entertain a complaint. Chair Binder expressed her belief that, with respect to matters in Open Session, that understanding would be correct. Commissioner Cerullo reiterated that it would apply only to an Open Session matter. Attorney Miller indicated that, having spoken for the record and heard the Commission’s response, he is satisfied that the advisory letter has been supplemented. Commissioner Harsch asked for Legal Counsel’s input on whether the Commission’s oral assurance on this matter would be dispositive. Legal Counsel Conley advised that it likely would not be dispositive. He indicated that the Commission does not have jurisdiction over quorum issues. As to Attorney Miller’s follow-up question, he stated that the issue of a recused member sitting as a “potted plant” is not before the Commission this morning, based upon the advisory request, and it is too abstract. He questioned exactly what is meant by the term “potted plant.” He suggested that the Staff’s guidance regarding recusal in public versus private sessions may be helpful. Legal Counsel Conley cautioned that when you recuse on a matter in closed session you have the same status as a member of the public. He stated that in such a situation you cannot truly be a “potted plant” because the public cannot be present. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Harsch to adopt the draft opinion, there was discussion. Commissioner Harsch emphasized that the Commission is not opining whether a member in a particular situation would have safe harbor. The Petitioner indicated that he would submit another request letter. Upon the original motion, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Joseph G. Miller, Esq., on behalf of the Health Services Council and its Chair, Robert J. Quigley, DC. At approximately 9:24 a.m., upon motion made by Commissioner Magro and duly seconded by Commissioner Heffner, 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 16, 2009. b.) In re: James Conway, Complaint No. 2009-1 c.) Status Update: William V. Irons v. The Rhode Island Ethics Commission, No. 2008-335-M.P. and 2009-01-M.P. d.) Motion to return to Open Session. The Commission returned to Open Session at approximately 11:15 a.m. and immediately took a short recess. The Commission reconvened at 11:21 a.m. The next order of business was a motion to seal minutes of the Executive Session held on June 30, 2009. Upon motion made by Commissioner Murray and duly seconded by Commissioner Magro, it was unanimously VOTED: To seal minutes of the Executive Session held on June 30, 2009. Chair Binder reported that the Commission took the following actions in Executive Session: 1) approved minutes of the Executive Session held on June 16, 2009; 2) approved an Informal Resolution & Settlement in Complaint No. 2009-12, In re: James Conway; and 3) discussed Irons v. The Rhode Island Ethics Commission. The next order of business was review and consideration of General Commission Advisory (GCA) No. 10 (Regarding RISDIC) and GCA No. 11 (Activities of a State or Municipal Official in Connection with Decisions Concerning His or Her Property, or the Property of Certain Relatives). Staff Attorney Gramitt informed that the Staff is reviewing old GCAs and presenting them to the Commission for updating and, in some cases, withdrawal. He recommended the withdrawal of GCA No. 10, which relates to RISDIC and is no longer applicable. He also recommended the withdrawal of GCA No. 11, given that it relies upon an outdated nepotism provision that only dealt with the immediate family. He noted that the issue, which is well-settled today, is addressed in the newly proposed GCA No. 2009-1 regarding nepotism. He indicated that the Commission would need to vote today and again at the July 21st meeting. Upon motion made by Commissioner Magro and duly seconded by Commissioner Harsch, it was unanimously VOTED: To withdraw (1st vote) GCA No. 10. Upon motion made by Commissioner Murray and duly seconded by Commissioner Magro, it was unanimously VOTED: To withdraw (1st vote) GCA No. 11. The next order of business was the Director’s Report. Executive Director Willever advised that there are three advisory opinions and one complaint pending. He stated that three requests for opinions have been withdrawn. He noted that two formal APRA requests have been granted and one is pending. Director Willever reported that seven hundred financial disclosure reminder letters were sent out with respect to the 2008 yearly Financial Statement. He represented that this year the Staff is trying to analyze which categories of filers do not respond the first time, such as whether they are new filers or if they have recently left their positions and do not believe they are still required to file. He noted that each year the Staff refines Operation Compliance, which is now at a 95% compliance rate. He informed that, while a small percentage will result in non-filing complaints, the goal is voluntary compliance. Director Willever stated that the Education Program continues to be strong and will become increasingly important as a mechanism to let the public know how the Commission perceives opinions from the Court. He indicated that the US State Department has asked the Commission to host a group of public officials from Indonesia on July 10th. He noted that, as part of the RI Bar Association’s Annual Meeting, Staff Attorney Gramitt recently participated in an ethics panel presentation that received positive feedback. The next order of business was New Business, of which there was none. At approximately 11:29 a.m., upon motion made by Commissioner Harsch and duly seconded by Commissioner Magro, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary