Minutes November 9, 2010 MINUTES OF THE OPEN SESSIONOF THE RHODE ISLAND ETHICS COMMISSION November 9, 2010 The Rhode Island Ethics Commission held its 19th 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, November 9, 2010, pursuant to the notice published at the Commission Headquarters, the State House Library, and electronically with the Rhode Island Secretary of State. The following Commissioners were present: Ross Cheit, Vice Chair Deborah M. Cerullo SSND J. William W. Harsch, Secretary Mark B. Heffner Frederick K. Butler 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 Amy C. Stewart; and Commission Investigators Steven T. Cross and Peter J. Mancini. At 9:05 a.m., the Chair opened the meeting. The first 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 Frederick J. Sneesby, a communications and policy analyst in the Office of the Governor. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. Vice Chair Cheit indicated that, although he had not looked up Advisory Opinion No. 2003-5, which was cited to in the draft, he believes that the title might mean more than the opinion suggests. In response to Vice Chair Cheit, the Petitioner represented that he is not the analyst and that he brings the information back to the Governor as a communication. Upon motion made by Commissioner Butler and duly seconded by Commissioner Heffner, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Frederick J. Sneesby, a communications and policy analyst in the Office of the Governor. The next order of business was a motion to approve minutes of the Open Session held on October 19, 2010. Senior Staff Attorney D’Arezzo noted a typographical correction in the last paragraph of page four. Upon motion made by Commissioner Harsch and duly seconded by Commissioner Cerullo, it was unanimousl VOTED: To approve minutes of the Open Session held on October 19, 2010, as amended. The next order of business was the advisory opinion of Lewis E. Johnson, a former member of the Charlestown Planning Board. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Cerullo and duly seconded by Commissioner Heffner, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Lewis E. Johnson, a former member of the Charlestown Planning Board. At 9:16 a.m., upon motion made by Commissioner Butler 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 October 19, 2010. b.) In re: Charles A. Lombardi, Complaint No. 2010-8 c.) In re: Maureen O’Gorman, Complaint No. 2010-11 d.) In re: Kathryn E. Leonard, Complaint No. 2010-13 e.) Motion to return to Open Session. The Commission returned to Open Session at 10:02 a.m. and took a brief recess, at which time Senior Staff Attorney D’Arezzo left the meeting. Upon reconvening, the next order of business was a motion to seal the minutes of the Executive Session held on November 9, 2010. Upon motion made and duly seconded, it was unanimously VOTED: To seal minutes of the Executive Session held on November 9, 2010. Vice Chair Cheit reported that the Commission took the following actions in Executive Session: 1) approved minutes of the Executive Session held on October 19, 2010; 2) found that probable cause does not exist in Complaint No. 2010-8, In re: Charles A. Lombardi; 3) initially determined that Complaint No. 2010-11, In re: Maureen O’Gorman, alleges facts sufficient to constitute a knowing and willful violation of the Code of Ethics, and also approved an Informal Resolution & Settlement of the matter; and 4) initially determined that Complaint No. 2010-13, In re: Kathryn E. Leonard, alleges facts sufficient to constitute a knowing and willful violation of the Code of Ethics. All votes taken in Executive Session were unanimous. The next order of business was a report on Financial Disclosure. Chief Investigator Steven T. Cross reported that the compliance rate for calendar year 2009 was 94%, with 100% compliance for judges, general officers and legislators. He stated that the Staff filed twelve non-filing complaints on October 6th, of which seven have settled and the remainder will be scheduled for probable cause hearings. Investigator Cross informed that the most recent financial statements filed by general officers and legislators, as well as the candidates for general office, are publicly accessible on the Commission’s website. Staff Attorney Gramitt reported on a new initiative to examine candidates’ compliance with the financial disclosure requirement. The purpose was to gather information as to the number of candidates, issues of timing, and determine a baseline percent of compliance; notably, the project did not focus on enforcement. Staff Attorney Gramitt informed that R.I. Gen. Laws § 36-14-16(c) requires every person who is a candidate for an elected office to file a financial statement within thirty days of the “filing deadline.” He explained that there could be two possible dates from which that time runs: 1) the deadline for filing the declaration of candidacy, which is usually during the last week of June; or 2) the date for filing nomination papers, which include a requisite number of signatures, usually in the middle of July. Aware of the possibility of a significant fall off of candidates who may fail to file their nomination papers, the Staff decided to contact the Secretary of State’s Elections Division after the July 16, 2010 nomination papers deadline. The Staff received a spreadsheet containing 3,978 names on July 26th. After a long process of filtering out those candidates who, by reason of incumbency or holding other office, had previously complied, the Staff determined that there were 621 new candidates required to file. The Staff sent a Financial Statement and explanatory letter to those 621 candidates and provided September 3rd as the deadline for compliance, approximately thirty days from the date of mailing. Staff Attorney Gramitt advised that this process resulted in 55% of the candidates complying with the requirement. Staff Attorney Gramitt reiterated that this was an information gathering exercise and enumerated some insight as to how candidate compliance should proceed. First, the Staff concluded that it is possible to ascertain the identity of new candidates and enforce compliance in the future. Second, timing is of the essence given that there is only about two months from the date of declaration of candidacy to the primary elections. Third, the Staff was surprised to find that the drop off from declaration of candidacy to the filing of nomination papers was only a few hundred people. Therefore, the Staff concluded that it would be best to request the list of candidates from the Secretary of State after the initial declaration of candidacy filing at the end of June, given the time constrains in the process. Fourth, the Staff seeks to develop tighter controls over the statistics to account for the many variables. For example, in response to Commissioner Harsch’s inquiry, the Staff seeks to determine what types of candidates are not complying. However, Staff Attorney Gramitt did note that the Commission had 100% compliance for all general officer candidates. Fifth, the Staff, dissatisfied with the 55% compliance rate, seeks to increase compliance through education programs. Vice Chair Cheit and Commissioner Heffner expressed concern over issues of future enforcement against candidates who lost their elections and failed to file Statements. Executive Director Willever stated that his first inclination would be only to prosecute those candidates who lost their elections if a citizen or opponent filed a complaint. In response to Commissioner Butler’s inquiry regarding staff and budgetary impacts, Staff Attorney Gramitt indicated that there might be a need for an enhanced database to process the information and, perhaps, additional staff and investigators. Commissioner Butler expressed concern that the rationale of the financial disclosure requirement potentially conflicted with the holding in Irons. Vice Chair Cheit noted that disclosure does not conflict with the speech in debate privilege because it is not intended to enable prosecution based on voting records but, rather, to enable the public to assess voting records. Commissioner Heffner expressed concern that potential future enforcement of candidate disclosure could have a chilling effect on people seeking public office. He noted that he would be reluctant to have Staff initiate complaints under these circumstances. Staff Attorney Gramitt recognized Administrative Officer Michelle Berg’s work in assessing and compiling not only the new project regarding candidates, but also the annual work regarding financial disclosure and Operation Compliance. The next order of business was the Commission’s discussion of Probable Cause. Vice Chair Cheit recognized that this issue arose in response to dicta in the Irons case and concerns about due process in the probable cause hearing procedures. He indicated that the very words “probable cause” lead to the irresistible and simultaneously uncomfortable analogy to criminal law. He noted that there are differences between the Commission’s process and criminal law procedures. Vice Chair Cheit recognized two issues causing the Commission discomfort: 1) the Prosecutor sometimes present too much information at the probable cause hearing; and 2) the Respondent sometimes moves the Commission beyond the probable cause threshold by presenting additional evidence for review. However, he stated that he thought neither of these issues were problematic because in the end it is better for the Respondent to have more information brought forth at the probable cause hearing. Additionally, he indicated that it might not be appropriate for the Commission to tell the Prosecutor how much evidence to present at hearing. Vice Chair Cheit stated that the Commission needs to police the amount of information it considers and limit the length of discussion itself. Vice Chair Cheit also expressed concern as to whether it was appropriate for the Commission to ask the Staff to write a memorandum on the interpretation of the probable cause standard, and he concluded that it was more appropriate to direct such questions to the Commission’s independent Legal Counsel. Commissioner Harsch asked if the Staff believes that there is a distinction between civil probable cause and criminal probable cause. Staff Attorney Gramitt explained that he believes that, while the definition is the same, the distinction lies in the application of the standard as to the relevant crime or violation alleged. In criminal law, the court seeks to determine if there is probable cause to believe that this person committed a particular crime. In the civil, administrative context, the Commission seeks to determine if there is probable cause to believe that this person violated the Code of Ethics. Commissioner Harsch inquired whether there is a difference in the threshold of proof required in a criminal probable cause hearing versus a Commission probable cause hearing. Staff Attorney Gramitt replied that the Staff uses and is comfortable with the criminal standard from Flores. He informed that the Staff has not found case law to support the existence of a different threshold in the civil or administrative context. In response to Commissioner Harsch, Legal Counsel Alves expressed his agreement with Vice Chair Cheit’s interpretation of the Commission’s probable cause procedure being constitutional and comporting with the requirements of due process. He stated that there is no case law in Rhode Island to support a different probable cause standard than the one used in criminal cases. He suggested that, given the Staff’s approval of the Flores standard, it would be prudent for the Commission to adopt and apply that standard. Legal Counsel Alves suggested that there is no need for changes unless the issue of pressure on the Respondent to settle prompts the Commission to seek a change in procedure. Commissioner Heffner asked Legal Counsel Alves what amount or type of evidence is appropriate to consider at a probable cause hearing, specifically focusing on what is the difference between the evidence presented at the probable cause hearing versus the full adjudicative hearing. Legal Counsel Alves replied that there is no prohibition against any evidence presented by the Prosecutor or Respondent. Additionally, he indicated that it is necessary to weigh credibility at the probable cause hearing. Vice Chair Cheit added that any credibility judgments made at probable cause hearings only stand to help the Respondent. Commissioner Cerullo noted that she is very cautious to say that there are no credibility determinations at probable cause hearings because she equates the standard itself, which requires reasonably trustworthy evidence, with assessing credibility. Commissioner Cerullo stated that at probable cause the Commission should be considering evidence for each element of the violation, including evidence that it was knowing and willful, as defined in DiPrete. Vice Chair Cheit commented that knowing and willful is relevant at probable cause. He stated that there should be reasonably trustworthy evidence that the violation was knowing and willful. He reiterated that he does not believe that there is a due process problem with probable cause. *Senior Staff Attorney D’Arezzo returned at 11:20 a.m. Commissioner Harsch inquired if the Commission was in violation of the Open Meetings Act by conducting probable cause hearings in Executive Session. Legal Counsel Alves advised that the Commission’s probable cause determination, statutorily, is part of its investigative powers and, therefore, is properly held in closed session. Staff Attorney Gramitt concurred and also noted that, as a policy matter, it makes sense to hold the hearing in Executive Session given that it involves the presentation of raw investigative data prior any determination of probable cause. In response to Commissioner Harsch, Legal Counsel Alves informed that there is no direct Rhode Island precedent on whether civil probable cause proceedings fall within the investigatory exemption to the Open Meetings Act. Vice Chair Cheit stated his belief that other jurisdictions keep the process even more confidential. Investigator Cross provided a police officer’s perspective in stating that probable cause is more than mere suspicion and less than absolute proof. He stated that, compared with the criminal grand jury, the Commission’s process is more open and fair. Investigator Cross recognized the potential impact that an ethics investigation could have on a public official’s reputation and voiced his support for conducting probable cause hearings in closed sessions. Legal Counsel Alves further noted that section 36-14-12(c)(6) provides that nothing in that section should be construed as authorizing the Commission to make any of its investigatory records public. He questioned how the Commission could conduct a probable cause hearing involving such records in public. Commissioner Harsch stated that he was satisfied with Legal Counsel Alves’ response and statutory authority. Vice Chair Cheit concluded the discussion of probable cause and suggested that it be placed on the next meeting’s agenda to give those members not present an opportunity to comment. The next order of business was the Director’s Report. Executive Director Willever introduced Amy C. Stewart, who recently began her employ as a Staff Attorney. Director Willever reported that there are fifteen complaints and eight advisory opinions pending. Three formal APRA requests have been granted since the last meeting, and there is one appellate litigation matter pending. The next order of business was New Business. Commissioner Cerullo indicated that she would like the union issue to be on the next meeting’s agenda. Staff Attorney Gramitt inquired as to the Commission’s intent, noting that the issue might need to be noticed more broadly if it goes beyond the participation in union actions by public officials who are union members. Vice Chair Cheit expressed his concern about having a rule that singles out unions. He indicated that the issue is broader and also speaks to other relationships, such as with trade associations. Commissioners Harsch and Cerullo concurred. At 11:33 a.m., upon motion made by Commissioner Butler and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary