Minutes October 21, 2008 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION October 21, 2008 The Rhode Island Ethics Commission held its 19th meeting of 2008 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street , 8thFloor, Providence, Rhode Island, on Tuesday, October 21, 2008, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: Barbara R. Binder, Chair Richard E. Kirby Ross Cheit, Vice Chair Deborah M. Cerullo SSND J. William W. Harsch, Secretary Edward A. Magro 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 Steven Branch. At 9:02 a.m., the Chair opened the meeting. The first 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 Scott N. Marshall, DVM, the Rhode Island State Veterinarian. Staff Attorney DeVault informed that the petitioner withdrew his request. The next advisory opinion was that of Michael Bouchard, a patrolman with the Burrillville Police Department. Staff Attorney DeVault presented the Commission Staff recommendation. The petitioner was not present. Commissioner Cheit questioned the caveat language included in the draft and inquired how the petitioner would recuse if he were on duty. Staff Attorney DeVault replied that the language had been included to provide absolute clarity in the unlikely event that the petitioner’s spouse came within fifty feet of the building. Commissioner Cerullo stated that if the petitioner were the only police officer there it would seem that he would have to exercise discretionary authority. Staff Attorney DeVault noted that the petitioner, in his role as a police officer, has no discretionary authority over the procedures utilized at the polling place. Commissioner Cerullo questioned whether that distinction would be sufficient to take the conduct outside of the Code of Ethics. Commissioner Cheit commented that it is not clear to him that the draft opinion allows the petitioner’s supervisor to put him on this job. Staff Attorney DeVault advised that the draft contains the standard caveat language acknowledging that things outside of the scope of the opinion can occur. Commissioner Cheit suggested that if such things may occur, perhaps the petitioner should not be assigned to this detail. Commissioner Cheit inquired what recusal would mean for a police officer under these circumstances. Commissioner Cerullo stated that she would like to know if there would be another officer present. Commissioner Cheit indicated that he cannot imagine that there would be more than one officer at the polling place. He noted that the same problem would present itself if the petitioner’s spouse’s opponent came to the location. He suggested that either the likelihood of that happening is so remote that the caveat language should not be included in the opinion, or it is sufficiently not remote such that the petitioner should not be on this detail. Commissioner Magro stated that it makes sense to have a provision in the opinion to address what happens if such a situation were to arise. He also suggested that it may be best left to the discretion of the petitioner’s supervisor as to whether or not he should be put on this detail. Commissioner Kirby expressed that the police are present for the public’s health and safety, so it would be hard to recuse in an emergency situation. However, he noted that if the police are there to enforce a 50 foot distance rule for candidates, there would be the same conflict present whether the petitioner’s spouse showed up or any of her opponents did. Commissioner Cheit stated that if the petitioner’s job is to enforce the 50 foot restriction then he should not be doing it. Commissioner Kirby indicated that he would have no problem with the petitioner working the detail if members of the local canvassing authority were there to enforce the rule. Staff Attorney DeVault stated that the petitioner specifically represented that he would be enforcing the 50 foot rule. Commissioner Cheit commented that it is not such a remote possibility that the petitioner’s spouse or one of her opponents would show up at the polling place. He questioned what the petitioner would need to recuse on. Staff Attorney DeVault replied that perhaps language to the effect that the petitioner would need to remove himself from handling a matter should have been used, rather than recuse. Commissioner Harsch stated that, based upon his observations, it tends to fall to the police officer on location to determine whether or not individuals wearing campaign t-shirts, buttons or bumper stickers are allowed to enter the polling place. Commissioner Cheit voiced his belief that the petitioner should not be doing this detail. Legal Counsel Conley advised that if the Commission’s position is that the opinion should conclude that the petitioner may not act, then it should amend the draft opinion to so state. He cautioned against not issuing an opinion and leaving the petitioner to act at his peril when there seems to be a consensus that he should not act. He advised that if no opinion were to issue, the petitioner does not know the reason why it was rejected, and it is fairer to let the petitioner know in advance that the Commission believes that such action would violate the Code. Chair Binder suggested that the Commission could decline to issue an opinion because there are too many opportunities for discretionary acts to occur. Legal Counsel Conley advised that if the Commission believes that the petitioner’s actions on Election Day could present a conflict, the taking of the detail itself is really what the Commission views as the conflict and is what the Code aims to prevent. Commissioner Cheit noted that the petitioner’s supervisor seems to say that he must receive an affirmative opinion from the Commission before he may receive the assignment. In response to Commissioner Magro, Legal Counsel Conley stated that, based upon his experience representing a municipal canvassing authority, the petitioner would be responsible for enforcing election rules. He explained that disputes arise at the polling places and it is up to the police officers to make sure that they do not. In response to Commissioner Cheit, Staff Attorney DeVault indicated that she has sufficient direction from the Commission to rewrite the opinion for issuance today. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To issue an advisory opinion, as amended to reject the draft opinion’s conclusion and reflect that participation in the enforcement of election rules, particularly the 50foot limitation, in and of itself presents a conflict under the Code. The next advisory opinion was that of Charles K. Hunter, Chairman of the Saylesville Fire District Board of Fire Wardens. Staff Attorney Leyden presented the Commission Staff recommendation. Ernest Lacombe, a member of the Board of Fire Wardens, was present. Mr. Lacombe clarified that the Fire District has 2 full time employees and 35 volunteers. He inquired whether it is problematic for the petitioner’s son to receive an annual stipend for his calls. Staff Attorney Leyden advised that she addressed that issue with the petitioner directly, but she noted that it is a separate issue beyond the scope of this request. Chair Binder agreed that they are different issues. Commissioner Cheit commented that the application of the nepotism provision in no way is a statement on the son’s qualifications for the position. Upon motion made by Commissioner Magro and duly seconded by Commissioner Kirby, it was unanimously VOTED: To issue an advisory opinion, attached hereto, Charles K. Hunter, Chairman of the Saylesville Fire District Board of Fire Wardens. The next advisory opinion was that of Lise Gescheidt, a member of the Tiverton Zoning Board of Review. Staff Attorney Gramitt presented the Commission Staff recommendation. The petitioner was not present. Staff Attorney Gramitt advised that the Commission previously considered this request and instructed Staff to reconsider and redraft the opinion. Staff Attorney Gramitt advised that the revised draft utilizes a totality of the circumstances approach patterned after the federal model. He noted that the focus is whether sections 5(a) or (d) of the Code would be violated because the public body’s decision would impact the official. Upon motion made by Commissioner Harsch and duly seconded by Commissioner Kirby, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Lise Gescheidt, a member of the Tiverton Zoning Board of Review. The next order of business was to approve the minutes of the Open Session held on October 7, 2008. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Harsch, it was unanimously VOTED: To approve the minutes of the Open Session held on October 7, 2008. ABSTENTION: Edward A. Magro. At approximately 9:42 a.m., upon motion made and duly seconded, it was unanimously VOTED: To go into Executive Session pursuant to R.I. Gen. Laws § 42-46-5(a) (4), to wit: Investigator Cross stated that the 4 non-filing complaints initiated by Staff in January 2008 all have been settled. The Staff recently filed an additional 13 non-filing complaints against members of municipal councils, school committees and zoning boards. He informed that the Staff’s efforts stress voluntary compliance and are aided by instruction provided by the Education Program. He noted that there has been an increase in the requests for and use of financial disclosure documents by the federal authorities, media and the public. He also reported that the process of scanning the Statements has proven to be highly effective, particularly for providing public access. In response to Commissioner Cheit, Investigator Cross stated that the state officials who are not in compliance hold positions on various entities that have not met in years. Commissioner Cheit noted that there are many complaints against zoning board members. Staff Attorney Gramitt agreed and reported that, in many cases, members are unaware of the requirement to file disclosure when they are appointed by their town council. In response to Commissioner Kirby, Investigator Cross noted that some towns, like South Kingstown, require individuals seeking such appointment to complete applications which disclose that the position is required to file financial disclosure. Commissioner Harsch inquired about the quality and accuracy of the disclosures that are made. Investigator Cross replied that there is not enough manpower to scrutinize them; however, no statement is accepted for filing unless there is an answer, including “N/A” or “not applicable,” for each question. He noted that a complaint can be initiated if it is brought to the Commission’s attention that information on a Statement is incorrect. In response to Commissioner Cheit, Investigator Cross confirmed that a Statement would be returned to an individual if a question were left blank. In response to Commissioner Kirby, Investigator Cross stated that this year the compliance rate was 67% on the filing deadline, whereas in 2001 it was only 43%. Executive Director Willever stated that the reminder letters and Staff contact with municipal solicitors have been great tools in the efforts to increase compliance. The next order of business was the Director’s Report. Executive Director Willever reported that there are 20 complaints pending, including 8 conflict matters and 12 non-filing complaints. He stated that there are 3 advisory opinions pending and 1 formal APRA request was granted since the last meeting. He advised that former Commission Chairperson James Lynch, Sr. is being honored by Operation Clean Government at its annual meeting on November 6th. On behalf of the Commission and Staff, he expressed appreciation for Mr. Lynch’s work. He also reported that the Staff continues to address ongoing budget and personnel matters. The next order of business was New Business. Commissioner Cheit announced that the Commission has issued its Decision & Order in the matter of In re: Joseph S. Larisa, Jr. Commissioner Cheit referenced a recently released report in the ethics investigation regarding Alaska Governor Sarah Palin. He noted that the statute refers to conflicts of interest, whether financial or personal. He suggested that the Commission may wish to consider whether similar language would be a useful addition to our Code of Ethics. Chair Binder requested that the matter be an agenda item for further information at the next meeting. In response to Chair Binder, Executive Director Willever informed that the annual COGEL conference will take place in Chicago from December 7-10. However, he advised that the Commission still has not received permission from the Budget Office to send even one Staff member. He noted that Staff Attorney Gramitt is scheduled to be a speaker at COGEL. Executive Director Willever indicated that he has requested a personal meeting to resolve the issue. At approximately 10:16 a.m., upon motion made by Commissioner Kirby and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary