Minutes December 15, 2009 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION December 15, 2009 The Rhode Island Ethics Commission held its 19th 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, December 15, 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 Mark B. Heffner James V. Murray John D. Lynch, Jr. Frederick K. Butler* 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 9:07 a.m., the Chair opened the meeting. The first order of business was a motion to approve minutes of the Open Session held on December 1, 2009. Upon motion made by Commissioner Cerullo and duly seconded by Commissioner Murray, it was unanimously VOTED: To approve minutes of the Open Session held on December 1, 2009. 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 Alfred W. DiOrio, PLS, CPESC, a Hopkinton Planning Board member. Staff Attorney DeVault informed that the Petitioner was unable to attend the meeting and has requested a continuance. This matter was continued to the next meeting. The next advisory opinion was that of Michael J. McCormick, AIA, the Chairman of the Barrington Planning Board. Staff Attorney Gramitt advised that the Petitioner had indicated that he would be in attendance. This matter was continued until later on the agenda. At 9:20 a.m., upon motion made by Commissioner Cerullo and duly seconded by Commissioner Murray, 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 December 1, 2009. b.) Preliminary Investigation No. 2009-2. c.) Motion to return to Open Session. The Commission returned to Open Session at approximately 9:38 a.m., with Commissioner Butler, who arrived during Executive Session, in attendance.* The next order of business was a motion to seal minutes of the Executive Session held on December 15, 2009. Upon motion made by Commissioner Murray and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To seal minutes of the Executive Session held on December 15, 2009. Chair Binder reported that the Commission took the following actions in Executive Session: 1) approved minutes of the Executive Session held on December 1, 2009; and 2) received a report on Preliminary Investigation No. 2009-2, on which no action was taken. The next order of business was the advisory opinion request of Michael J. McCormick, AIA, the Chairman of the Barrington Planning Board. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. Chair Binder inquired whether the analysis would be the same if a lawyer were to hear a case that he or she had worked on when there was an ongoing business association. Staff Attorney Gramitt replied that the analysis would be the same under the Code; however, he noted that the Rules of Professional Responsibility place additional restrictions on governmental attorneys and would likely prohibit such conduct. In response to Chair Binder, the Petitioner represented that he emailed the YMCA’s advisory building committee last week indicating that he would no longer have any involvement. He also emphasized the ad hoc nature of the committee. In response to Chair Binder, the Petitioner advised that sometimes the Planning Board would agree with the committee’s recommendations and sometimes it would not. Chair Binder expressed that something seems amiss to her. The Petitioner replied that he would feel differently about the situation if the committee had been more like a typical building committee. The Petitioner stated that the committee has essentially disbanded and he represented that it did not really get into the project. In response to Commission Heffner, Staff Attorney Gramitt indicated that if the committee had been more involved it might have changed his advice to the Petitioner as to whether he should seek an advisory opinion, due to the increased appearance of impropriety, but it would not have changed the legal analysis under the Code. Commissioner Heffner inquired whether the Petitioner could resign from the committee and sit and hear the matter as a Planning Board member the next day, even if he had been more actively involved or perhaps chaired the committee. Staff Attorney Gramitt replied in the affirmative based upon the Commission’s past interpretations of what constitutes a business association. In response to Commissioner Cerullo, the Petitioner stated that the committee did provide the advice with which it was tasked to give to the YMCA staff and Board, as referenced in the draft opinion. In further response, the Petitioner confirmed that the YMCA is now taking the proposed expansion plans, with his committee’s input, before the Planning Board on which he serves. Upon motion made by Commissioner Cheit and duly seconded by Commissioner Butler, it was VOTED: To approve the draft advisory opinion. AYES: Frederick K. Butler, James V. Murray, John D. Lynch, Jr. and Ross Cheit. NOES: Deborah M. Cerullo SSND, Mark B. Heffner and Barbara R. Binder. Chair Binder advised that no advisory opinion will issue, due to a lack of five affirmative votes, and the Petitioner may proceed at his own risk. The next order of business was Public Comment on and Commission adoption of proposed General Commission Advisory (GCA) 2009-3: Participation in Union Actions by Public Officials who are Union Members. Chair Binder informed that the Commission has received all of the written comments submitted and requested that those who signed up to speak limit themselves to two minutes. The first member of the public to speak was James Parisi, on behalf of the RI Federation of Teachers and Health Professionals. Mr. Parisi expressed his belief that the proposed GCA is illegal, unconstitutional and unethical. He stated that it fails to provide any evidence of a specific common financial objective. He noted that his organization represents diverse groups, such as teachers, school support staff, visiting nurses, group home workers and state employees. He questioned where the common financial objective would exist among such groups. He commented that the proposal infringes upon freedom of speech and freedom of association. Mr. Parisi expressed his belief that adoption of the proposal will impede citizens from running for office and dissuade union members from running for office. He stated that it is a transparent attempt to limit union members from participating in the political process. He pointed out that the proposal glosses over attorneys, who are members of bar associations, and business owners, who are members of chambers of commerce. He noted that it singles out union members and does not address other professional affiliations. Mr. Parisi commented that there has been no underlying change in law or regulation to justify a change in the Commission’s interpretation. He suggested that the proposal is an example of situational ethics. In response to Commissioner Cheit, Mr. Parisi stated that attorneys would share a common financial objective by belonging to the same bar association. He further stated that business owners would have a common financial interest. He added that he does not believe that any of them should potentially be in violation of the Code due to these affiliations. Commissioner Cheit indicated that union members would share a commonality with respect to wages and working conditions. Mr. Parisi replied that the commonality would be shared by all those who work. Commissioner Cheit inquired whether obtaining a specific economic benefit is not the purpose of the labor organization. The next member of the public to speak was Robert Mann, Esq., on behalf of Working RI. He commented that he finds the process troubling procedurally. He stated that he is troubled by the use of a guideline advisory opinion as opposed to rulemaking under the APA. He also noted his concern over the lack of procedure regarding the development of the record. Attorney Mann stated that the proposal discriminates against unions and, as such, raises issues relative to freedom of speech, equal protection and over breadth. He noted that the Commission cannot single out what type of association is prohibited. Attorney Mann also expressed concern that there has been no effort to harmonize the Irons decision, with respect to legislative immunity, with the proposed GCA. The next member of the public to speak was George Nee, on behalf of the RI AFL-CIO and Working RI. Mr. Nee commented that the proposal is insulting in that it singles out unions in a discriminatory way. He stated that it is an attack on union members’ freedoms of association and speech, and right to equal protection. He noted that there is no understanding of the mechanisms of the labor movement and no efforts relating to other associations or occupations. Mr. Nee suggested that if the Commission were to adopt the proposal today he would view it as a strictly political decision, not an ethical one. He indicated that it would have chilling effects on people’s basic political rights in a democracy. Chair Binder replied that it was a union member who came to the Commission for an advisory opinion and commented that she perceived the situation to be a conflict of interest. Mr. Nee stated that one member’s misguided statement does not allow for everyone’s rights to be taken away. Commissioner Heffner stated that no rights are being taken away. He noted that the process is unfolding as it should, with public comment, and the Commission may not be inclined to vote today after hearing the comment. He asked Mr. Nee what the Commission is missing regarding the mechanisms of the union. Mr. Nee replied that the union’s purpose is to provide organization to ensure wages and benefits in the work place. He noted that these involve issues of safety, a voice on the job and respect, not just an economic benefit. He stated that people in the bargaining unit make decisions as part of a democratic organization. He added that finding a business association between them does not make sense. The next member of the public to speak was Harry Staley, on behalf of the RI Statewide Coalition. Mr. Staley expressed support for the proposal. He stated that their attorney submitted written comment which pointed out that the recusal issue in Example 5 should be further considered because unions are in effect acting together. Mr. Staley referenced Attorney Mann’s comments with respect to legislative immunity. He stated that under separation of powers bargaining and voting on contracts are executive, not legislative, acts. In response to Commissioner Lynch, Mr. Staley clarified that this was in the practical sense. The next member of the public to speak was Sandra Thompson, on behalf of Operation Clean Government. Ms. Thompson indicated that she had distributed written testimony. She commended the Commission for reviewing the proposed GCA as a step in the right direction. She stated that the proposal is in the best interest of the general public versus that of any special associations lobbying for individuals with common interests. Ms. Thompson noted that she takes issue with rank and file members not being business associates because they are working for common benefits. She pointed out that members of various locals show up at other municipal school committee meetings to support or oppose issues regarding bargaining. She suggested that the Commission look at union members who are public officials from a conflict of interest perspective. The next member of the public to speak was Steven Brown, Esq., on behalf of the RI ACLU. Attorney Brown distributed written comment to the Commission and voiced his opposition to the proposal. He stated that it inappropriately interferes with the rights of public officials to run for office and represent their constituents, as well as their freedom of association. He voiced his disagreement with the comparability analysis set forth in the Staff’s July memorandum. He expressed concern that Regulation 5002(c) would prohibit individuals from participating in disciplinary or personnel issues. He questioned how being a member of a union creates that conflict, regardless of which union it is. Attorney Brown expressed his belief that a change in policy will prevent public officials who happen to be union members from effectively serving, and discourage them from running for office, because they would be required to recuse too frequently. In response to Commissioner Cheit, Attorney Brown agreed that the current regulations may discourage some individuals from seeking office. Commissioner Cheit inquired whether the Commission should worry about that. Attorney Brown noted that the number of recusals that would be required of officials who are union members would be a strong argument for an opponent to make. Commissioner Cheit stated that he believes Attorney Brown has a point with respect to disciplinary and other personnel issues, and he questioned whether there would be a lesser conflict in participating in disciplinary proceedings than the negotiation of wages. Attorney Brown stated that if the Commission accepts that these individuals have a common financial objective then the proposed GCA does not go far enough. He suggested that it should be a ban on participating in matters regarding any other unions due to the comparability argument. In response to Commissioner Cheit, Attorney Brown agreed that there is a financial difference between participating in personnel or disciplinary matters versus bargaining. Commissioner Cheit indicated that perhaps the proposal should be more narrowly drawn. Attorney Brown expressed that the logical outgrowth is that any public official who is a union member and participates in any union negotiations is in conflict, which demonstrates the overbreadth of the proposed GCA. The next member of the public to speak was Representative Douglas Gablinske. He complimented the Commission for its consideration of the proposed GCA. He noted that his prior advice to the Commission on this issue was to follow the money and he stated his belief that the Commission has done a masterful job of identifying those interests and trying to carve them out. He expressed his view that the proposal does not interfere with legislative immunity, and he noted that there is a group in the House working on that issue and changes might be seen in the 2010 legislative session. Commissioner Lynch stated that from the beginning he has believed that this is not the correct way to address this issue. He noted that he has voted against it each time it has come up and he intends to do so again. He agreed with a point made in Attorney Mann’s written submission that there are some things the Commission needs to look at in light of the Irons decision. Chair Binder expressed that she would have issued an incremental, individual advisory opinion. She stated that the proposal is very broad and there are too many unresolved issues. She suggested that the Commission take time to ponder the issue and look at proceeding with a different route. In response to Commissioner Lynch, Legal Counsel Conley advised that the Commission would not be precluded from taking another route, such as rule-making, if it decides not to issue the proposed GCA. In response to Commissioner Lynch, Legal Counsel Conley confirmed that the Commission would have to make specific findings if it were to engage in rule-making under the APA. In response to Commissioner Cerullo, Legal Counsel Conley stated that the Commission can evaluate the written and oral testimony received today and continue its consideration of the GCA to another meeting. Upon motion made by Commissioner Heffner and duly seconded by Commissioner Butler to continue consideration of the GCA to a subsequent date, there was discussion as to specifying a date certain. Commissioner Cheit indicated that he would like to get the Staff’s input, particularly regarding the Irons issue, and then revisit the issue. He noted that Attorney Brown had just provided written comments and the Commission should have time to digest them. He stated that he believes there are some advantages to adopting a regulation. Chair Binder noted that quite a few comments addressed the fact that a business associate would not be able to testify before the union member’s public body, but the Commission does not have jurisdiction over the business associate. She stated that the Commission has never interpreted the regulation that way, but it is not artfully drafted and there is some cleaning up to do. Chair Binder indicated that she would like the Staff to go through the written comments submitted and provide input. Commissioner Cheit observed that there were many points raised, but a few merit serious consideration. Chair Binder suggested that the Commission review the RI ACLU’s written comment and have further discussion at the January 12th meeting, at which time it will provide direction to Staff as to what it seeks additional input on. Commissioners Heffner and Butler amended their original motion and second. Upon motion made and duly seconded, it was unanimously VOTED: To bring the issue back for consideration on January 12, 2010, at which time the Commission will specifically direct Staff regarding the points it has distilled from the testimony on which it requests additional input. The next order of business was consideration of a request for amendment of Regulation 5009 submitted by Giovanni Cicione. In response to Commissioner Heffner, Senior Staff Attorney D’Arezzo advised that Mr. Cicione received notice that the Commission would consider his petition today; however he had not been invited to participate. Chair Binder advised that the Commission previously discussed whether it would issue a denial, a denial based upon mootness, or a denial due to the proposal being too narrow. Commissioner Heffner stated that he is inclined to view the petition as a specific request for a language change. However, he noted that he does not know if one member is the correct number to establish a sufficient nexus. He moved to deny the petition with the knowledge that the Commission is investigating the issue on a broader basis. Chair Binder advised that the Commission must provide the specific grounds for denial. Commissioner Heffner replied that the proposed language is too narrowly drawn and does not define a “national trade association.” Commissioner Cerullo expressed that she would prefer to deny the petition due to mootness but has concerns regarding a denial without prejudice. Commissioner Cheit indicated that the Commission cannot prevent someone from coming back. Commissioner Lynch moved to deny the petition with prejudice, based upon the Commission undertaking separate action to address a related issue. Commissioner Heffner suggested that the motion be amended to reflect that the denial is based upon 1) the narrowness of the proposal; and 2) the Commission is undertaking separate action. Commissioner Cheit cautioned against stating that the fact that the proposal is limited to national trade associations is the reason for the denial. Legal Counsel Conley advised that Commissioner Lynch’s motion is sufficient. Commissioner Heffner withdrew his original motion and seconded Commissioner Lynch’s motion to deny with prejudice, based upon the Commission undertaking separate action to address the issue. There was further discussion. Commissioner Cerullo stated that she would be more comfortable with denying the petition without prejudice. She expressed her concern that, while not likely, the Commission could go through the rule-making process and come up with same language proposed by Mr. Cicione. Upon amended motion made by Commission Lynch and duly seconded by Commissioner Cerullo, it was unanimously VOTED: To deny the petition, without prejudice, based upon the Commission undertaking separate action to address the issue. The next order of business was a report from Legal Counsel regarding due process issues relative to: the Complainant’s role in the complaint process; the right to jury trial in administrative proceedings; initial determinations; and preliminary investigations. Legal Counsel Conley informed that case law reflects a common thread of agency processes passing due process muster where there is a separation of the prosecutorial and adjudicative functions through regulations. He advised that the courts mainly have been concerned with the impermissible co-mingling of these functions. He stated that the courts universally agree that investigation of facts is part of the prosecutorial process and the fact finders should not be involved. He noted that due process violations have been found where there has been an overlap of such functions. In contrast, he stated that the courts have found that due process principles have been met and hearings have been fair, where there is a separation of these functions within the agency. With respect to initial determinations, Legal Counsel Conley advised that the regulations do not contemplate fact-finding by the Commission. He stated that the determination is whether the information contained within the four corners of the complaint meets the requirement of stating an alleged violation under the Code. Legal Counsel Conley indicated that, pursuant to the Commission’s initial determination policy, the Commission can and does look beyond the four corners and looks to see if public records support the allegation. He stated that this is fine, up to a point. Legal Counsel Conley informed that public records, such as tax records, land use notices, etc., are records of which the Commission can take administrative notice. However, some public records, such as hearing transcripts, also contain allegations. Legal Counsel Conley cautioned that this type of information is not what the Commission is directed to look at for initial determination. Legal Counsel Conley informed that the greater the participation in ex parte fact-finding, the greater the chance of a court finding a due process violation. He advised that courts have looked at probable cause findings, pre-adjudication, where the Respondent has the opportunity to respond and participate in the probable cause hearing. The courts have remarked favorable in those cases, as the opportunity to be heard is the cornerstone of due process. Legal Counsel Conley advised that the Commission’s procedures allow for significant participation by the Respondent, more so than in the cases he reviewed in which the courts found probable cause proceedings to be acceptable. Regarding the complainant’s role in the complaint process, Legal Counsel Conley advised that the issue is part and parcel of the right to a jury trial in administrative proceedings, as set forth in the Irons briefs. He noted that Irons’ argument, in part, had been that the proceedings before the Commission were transformed into a private process given that the complaint was filed by private parties. Legal Counsel Conley informed that the complainant has a very limited role, namely the right to be present at the probable cause hearing. He indicated that the concern is whether the Commission provides the complainant with participation to the extent that it would compromise application of the public rights doctrine. He stated that it is hard to find legal authority on the issue either way. Legal Counsel Conley informed that the Commission needs to pay attention as it proceeds to ensure that the process remains on behalf of the sovereign, even when a private party files a complaint. He urged the Commission to tread carefully if it thought to expand the complainant’s role. As to the right to a jury trial in administrative proceedings, Legal Counsel Conley stated that the Commission is left to speculate what the Court meant when it stated that Irons raised a formidable argument. He noted that Irons’ arguments attacking application of the public rights doctrine included the fact that the action was criminal in nature, it was criminal at common law, and that is would have entitled him to a jury trial at the time of the adoption of the Rhode Island Constitution. Legal Counsel Conley questioned to which of these arguments the Court was referring, or if it were referring to them all. He respectfully advised that, because the Court did not reach the issue, it may not have considered the extent to which the Commission separates the investigatory and adjudicative processes under its regulations. He expressed his opinion that the Commission processes pass due process muster as long as the functions are kept separate. Chair Binder inquired if there is anything the Commission should do, in response to the Irons dicta, to ensure that it is providing sufficient due process. She indicated that having the dicta out there is worrisome and the Commission needs to tighten up its processes. Legal Counsel Conley suggested that the Commission could add additional language or policy at each stage to reaffirm the separation of its roles. In response to Commissioner Lynch, Legal Counsel Conley stated that the Commission could have language more directed at separating the probable cause and adjudicative stages. Commissioner Cheit suggested that the Commission place the complainant’s role on the agenda or regulatory list for its consideration of making that role smaller. Commissioner Cheit indicated that he is not convinced that what the Commission has now could not be made better and he would like to consider options regarding the probable cause stage. Commissioner Cerullo questioned whether the Commission should be thinking about if there is a right to a jury trial at adjudication, noting that those who make the probable cause findings are those who are adjudicating. She also inquired as to the role of Staff and the Commission at the initial determination stage. She noted that in some cases the facts are not in dispute, but the question is whether those facts constitute a violation of the Code. Legal Counsel Conley advised that at initial determination the Commission does not make credibility judgments or inferences. It is a legal sufficiency test for the Commission. Commissioner Lynch asked if there would be any benefit to having a standard, taking all of the information in the light most favorable to the Respondent. Legal Counsel Conley replied that it could and he indicated that he has started to draft some language. Chair Binder asked Legal Counsel to come up with language that he believes would help in the Commission in each of these areas. She asked the Staff to provide the prior draft language on the complainant’s role to Legal Counsel for his review to determine how best to proceed. Legal Counsel Conley indicated he would prepare some language for the next meeting. The next order of business was the Director’s Report. Executive Director Willever reported that there are seven complaints and four advisory opinions pending, and one preliminary investigation that had been reported on today. He informed that there have been no formal APRA requests since the last meeting. Director Willever stated that the next meeting will be on January 12, 2010. He wished the Commissioners happy holidays from the Staff and thanked them for their hard work and support. The next order of business was New Business proposed for future Commission agendas. Chair Binder noted that the Commission already has a full agenda coming up. At approximately 11:14 a.m., upon motion made by Commissioner Cerullo and duly seconded by Commissioner Cheit, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary