Minutes July 24, 2007 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION July 24, 2007 The Rhode Island Ethics Commission held its 13th 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 Tuesday, July 24, 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 V. Murray Barbara R. Binder, Vice Chair James C. Segovis 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. At approximately 9:08 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 19, 2007. Upon motion made by Commissioner Murray and duly seconded by Commissioner Binder, it was unanimously VOTED: To approve the minutes of the Open Session held on June 19, 2007. *Commissioner Kirby arrived at 9:12 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 Stephen Olsen, Director of the University of Rhode Island Coastal Resources Center (URI/CRC). Senior Staff Attorney D’Arezzo presented the Commission Staff recommend-ation. The petitioner was present along with Jennifer McCann, the US Programs Team Leader. Mr. Olsen emphasized that context is the most important issue for the CRC and questioned whether it is appropriate for the private sector to contribute. He clarified that they develop options for the CRMC, implementing the process of the plan, and that all gifts donated to URI go to the URI Foundation. Ms. McCann stated that the CRC must fundraise for 99% of their salaries and activities. She questioned whether another option, having the General Assembly designate a certain percentage of the permit fee toward designing the coast, would be feasible. Commissioner Kirby replied that it would be a matter for the legislature to determine. In response to Commissioner Cheit, Mr. Olsen stated that a tax lawyer has not reviewed the donation for URI. Commissioner Cheit expressed his concern that the donation to the URI Foundation for CRC’s use on this project might not pass muster as a charitable donation. If it did, however, he indicated that the Commission would not have jurisdiction. In response to Commissioner Binder, Ms. McCann stated that this is the first time an entity wishes to make such a donation. Commissioner Binder expressed that the proposed donation seems wrong. Commissioner Kirby stated that it would be a direct gift to the advisory group to the CRMC that is playing an integral role. In response to Commissioner Weavill, Ms. McCann indicated that the URI/CRC presently does not have a contract with the CRMC regarding the Aquidneck Island SAMP, although they are under contract for other SAMPS. Commissioner Segovis expressed that the proposed donation would amount to very little money per year for a potential precedent that does not make sense and suggested that they look at other private sector solutions. He stated his discomfort with the proposal. Commissioner Kirby noted that it would be really hard for them to turn down this money, but cautioned against a slippery slope which could somehow compromise their integrity. Mr. Olsen advised that the CRC is concerned with its reputation and maintaining transparency. Commissioner Cheit stated his belief that the Commission does not know enough to state that the proposed donation would violate the Code or constitute an appearance of impropriety and suggested that they take the third option and not issue the opinion. He noted that at the university level they do not want restricted gifts. Upon motion made by Commissioner Cheit not to issue an advisory opinion there was no second. Upon motion made by Commissioner Segovis and duly seconded by Commissioner Binder to approve Option A, there was discussion. Commissioner Kirby indicated that he does not believe the tax law totally controls the situation and suggested that by not issuing an opinion there might be undue pressure on the petitioner. Commissioner Cheit noted that the tax issue is directly related to why the matter is under the Commission’s jurisdiction. Commissioner Weavill suggested that if the Commission adopted Option A the petitioner could return if the facts change. Commissioner Cheit stated that he would not want to vote on it without hearing from a tax attorney. Upon the original motion, it was VOTED: To approve Option A and issue an advisory opinion, attached hereto, to Stephen Olsen, Director of the University of Rhode Island Coastal Resources Center (URI/CRC). AYES: James Lynch, Sr., James V. Murray, Barbara R. Binder, Richard E. Kirby, James C. Segovis and George E. Weavill, Jr. NOES: Ross Cheit. The next advisory opinion was that of Colonel David E. Desjarlais, Chief of Police for the Town of East Greenwich. Staff Attorney Gramitt presented the Commission Staff recommendation. The petitioner was present. In response to Chair Lynch, Staff Attorney Gramitt advised that the Town Manager could not attend but he did receive a second letter bearing the Town Manager’s signature which consented to the alternate chain of command. In response to Commissioner Binder, the petitioner stated that an officer within the Department generates a list of all interested persons and clarified that everyone on the list will be hired due to the need for individuals with flexible schedules. He noted that if he tried to deviate from the established process it would present a union issue. Commissioners Binder and Segovis suggested that language be added to clarify that it is not a selective process. In response to Commissioner Kirby, the petitioner informed that his son has not proceeded with employment pursuant to the safe harbor letter. Commissioner Cheit made a motion to approve the draft opinion as amended to clarify that it is an automatic process and the petitioner’s subordinate is not selecting individuals. Chair Lynch inquired how orientation and training matters would be handled, since they are not addressed in the Town Manager’s letter. He stated his discomfort with inserting the Town Manager into a police process and indicated he would have trouble approving the opinion. Commissioner Weavill voiced his similar concerns, particularly in light of the newly adopted nepotism regulation. He cautioned against creating an alternative process for a temporary position. In response to Commissioner Binder, the petitioner advised that his son was not doing the same work in North Kingstown given that his brother is an officer in that municipality. Commissioner Segovis stated that he is more comfortable with this situation given its nature and context, which essentially amounts to part-time employment with checks and balances. Commissioner Kirby stated that it would be okay with him because the selection list is structured and the son would not be getting preferential treatment for this part-time position. Chair Lynch voiced his discomfort with the situation. Upon motion made by Commissioner Binder and duly seconded by Commissioner Kirby, it was VOTED: To issue an advisory opinion, as amended to clarify that all individuals on the list are qualified and the process is not selective, to Colonel David E. Desjarlais, Chief of Police for the Town of East Greenwich. AYES: James C. Segovis, Richard E. Kirby, James V. Murray, Ross Cheit and Barbara R. Binder. NOES: George E. Weavill, Jr. and James Lynch, Sr. *Commissioner Kirby left the meeting at 10:05 a.m. The next advisory opinion was that of David Medeiros, an East Providence School Committee member. Staff Attorney Gramitt presented the Commission Staff recommendation. *Commissioner Kirby returned at 10:07 a.m. Commissioner Weavill commented that in the municipal setting there is not always a clear up or down vote and questioned what would happen if it were to develop into a discussion of issues. Commissioner Binder suggested that language be added to clarify that the petitioner would need to recuse or seek further guidance if the up or down vote devolves into a discussion of line items. Upon motion made by Commissioner Binder and duly seconded by Commissioner Weavill, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, David Medeiros, an East Providence School Committee member. The next advisory opinion was that of Lorraine C. Iafrate, a Johnston School Committee member. Staff Attorney Gramitt presented the Commission Staff recommendation and noted that he would add the same cautionary language adopted in the prior opinion. The petitioner was not present. Upon motion made by Commissioner Weavill and duly seconded by Commissioner Murray, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Lorraine C. Iafrate, a Johnston School Committee member. The next advisory opinion was that of Janice D. Mele, Chair of the Johnston School Committee. Staff Attorney Gramitt presented the Commission Staff recommendation and noted that he would add the same cautionary language adopted in the prior opinions. The petitioner was not present. Upon motion made by Commissioner Weavill and duly seconded by Commissioner Binder, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Janice D. Mele, Chair of the Johnston School Committee. The next advisory opinion was that of Carmen Mirabal, a Program Coordinator for Rhode Island Housing. Staff Attorney Gramitt presented the Commission Staff recommendation. The petitioner was not present. Upon motion made by Commissioner Murray and duly seconded by Commissioner Segovis, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Carmen Mirabal, a Program Coordinator for Rhode Island Housing. The next advisory opinion was that of Beverly O’Keefe, a Supervising Planner for the Rhode Island Water Resources Board. Staff Attorney Gramitt presented the Commission Staff recommendation. The petitioner was not present. Upon motion made by Commissioner Weavill and duly seconded by Commissioner Cheit, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Beverly O’Keefe, a Supervising Planner for the Rhode Island Water Resources Board. Chair Lynch requested a motion to amend the Executive Session agenda to to include discussion, for informational purposes, of recently filed litigation. Upon motion made by Commissioner Murray and duly seconded by Commissioner Cheit, it was unanimously VOTED: To include on the Executive Session agenda discussion of Sharon Schubert and Lynda Avanzato v. Kent Willever, Executive Director of the Rhode Island Ethics Commission, Superior Court C.A. No. 07-3733. At approximately 10:24 a.m., upon motion made by Commissioner Kirby and duly seconded by Commissioner Segovis, it was unanimously VOTED: To go into Executive Session pursuant to R.I. Gen. Laws § 42-46-5(a)(4), to wit: a.) Motion to approve minutes of Executive Session held on June 19, 2007. b.) Discussion of Sharon Schubert and Lynda Avanzato v. Kent Willever, Executive Director of the Rhode Island Ethics Commission, Superior Court C.A. No. 07-3733. c.) Motion to return to Open Session. The Commission reconvened in Open Session at approximately 11:09 a.m. Chair Lynch reported that the Commission voted to approve minutes of the Executive Session held on June 19, 2007 and discussed a recently filed litigation matter. The next order of business was a motion to seal the minutes of the Executive Session held on July 24, 2007. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Murray, it was unanimously VOTED: To seal the minutes of the Executive Session held on July 24, 2007. The next order of business was the Director’s Report. Executive Director Willever reported that there are eight complaints and sixteen advisory opinions pending, and the Commission received four formal APRA request since the last meeting. He noted that a student from Roger Williams Law School was present to observe the meeting today. He advised that Staff Attorney Gramitt will be giving a presentation at the Attorney General’s Open Government Summit on August 3rd. Director Willever stated that the Commission will be hearing oral argument in the Montalbano case on August 21st and the briefs will be provided to the members in advance of the argument. Commissioner Binder requested that the members receive the Prosecution’s brief upon filing and copies of the cases upon which it relies. The next order of business was New Business. There being none, at 11:17a.m., upon motion made by Commissioner Weavill and duly seconded by Commissioner Segovis, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, __________________ George E. Weavill, Jr. Secretary