Minutes January 7, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION January 7, 2020 The Rhode Island Ethics Commission held its 1st meeting of 2020 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street, 8th Floor, Providence, Rhode Island, on Tuesday, January 7, 2020, pursuant to the notice published at the Commission offices, the State House Library, and electronically with the Rhode Island Secretary of State. The following Commissioners were present: Marisa A. Quinn, Acting Chair* Timothy Murphy Arianne Corrente, Secretary** Kyle P. Palumbo J. Douglas Bennett Robert A. Salk The following Commissioner(s) were not present: M. Therese Antone and Emili B. Vaziri. Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Jason Gramitt, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Lynne Radiches, Staff Attorney/Education Coordinator; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross and Peter J. Mancini . At 9:00 a.m., the Acting Chairopened the meeting. The first order of business was: Approval of minutes of the Open Session held on December 10, 2019. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Palumbo, it was VOTED: To approve the minutes of the Open Session held on December 10, 2019 AYES: Marisa A. Quinn; Arianne Corrente; and Kyle P. Palumbo. ABSTENTIONS: J. Douglas Bennett; Timothy Murphy; and Robert A. Salk. The next order of business was: Advisory Opinions. The advisory opinions were based on draft advisory opinions prepared by 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 Reppucci, a Principal Public Health Promotion Specialist for the Rhode Island Department of Health, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics to his impending private employment with RPA: a Jensen Hughes Company, a private emergency management consulting company. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Radiches stated that the Petitioner and his supervisor contacted her following receipt of the draft advisory opinion and asked how its guidance would apply in the event of an emergency evacuation. Staff Attorney Radiches informed the Commission that Advisory Opinion 2016-26 involving an East Greenwich firefighter and his brother was helpful here. She explained that, therein, the Commission opined that no violation of the nepotism regulation would occur in an emergency situation where incident-specific supervision of the petitioner’s brother was unavoidable. Staff Attorney Radiches stated that, while the facts here do not involve nepotism, the same rationale may apply here and the draft opinion may be amended to include language that the Petitioner, in his private employment, would not be prohibited from providing guidance and technical support to the Department of Health (“DOH”) in emergency matters. The Petitioner addressed the Commission and asked to distribute a letter from DOH to the Commissioners. Referencing the letter, the Petitioner represented that the loss of his knowledge and expertise in emergency matters would be a detriment to state operations. He further represented that he will not participate in contract negotiations nor solicit work from any state entity but would like to provide help and support in a tertiary role. In response to Acting Chair Quinn, the Petitioner stated that he would receive a salary and any bonuses are tied to projects on which he works. In response to Commissioner Murphy, the Petitioner stated that he is the only hospital preparedness coordinator in the state. Acting Chair Quinn expressed that the emergency exception should apply to the Petitioner but was concerned with permitting him to provide input to the DOH in non-emergency situations. Discussion ensued regarding the meaning of “emergency” and who establishes that definition. In response to Commissioner Murphy, the Petitioner informed that his position is federally-funded and the state will hire a replacement to fill his position. In response to Acting Chair Quinn, the Petitioner informed that the DOH defines “emergency” in coordination with RPA. Staff Attorney Radiches proposed amended language for the draft opinion relating to emergency evacuations. Upon motion made by Commissioner Salk and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Joseph Reppucci, a Principal Public Health Promotion Specialist for the Rhode Island Department of Health. The next advisory opinion was that of: Melissa Pattavina, a member of the Newport Planning Board, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in discussions and decision-making relative to matters concerning the proposed demolition of property and subsequent demolition of a hotel in Newport, given that her mother owns property within 200 feet of the hotel’s proposed location. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. The Petitioner addressed the Commission and explained that she agrees with the advisory opinion but argued that she has a greater responsibility to serve the public interest in Newport. She further argued that her mother’s property is just at the 200-foot radius and there is a greater area than her mother’s property that could be impacted, which interest outweighs any financial impact on her mother. The Petitioner informed that she came to the Planning Board with expertise as a transportation consultant. Acting Chair Quinn thanked the Petitioner for her comments but explained that the Code of Ethics provides bright lines to govern official conduct. In response to Commissioner Murphy, Executive Director Gramitt explained how the public forum exception is applied to the prohibition against appearing before one’s own public body, but he stated that the Commission is cautious not to advise people to recuse from their public body’s discussions and then speak as members of the public because of the appearance of impropriety. In response to Acting Chair Quinn, the Petitioner stated that one member of the Planning Board has property just outside the affected area. Upon motion made by Commissioner Salk and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Melissa Pattavina, a member of the Newport Planning Board. The next advisory opinion was that of: Wendy Allmendinger, a probation and parole officer at the Rhode Island Department of Corrections, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working in her private capacity as an independent contractor providing supervised visitation services to Rhode Island families. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Popova Papa explained that, at the Commission’s last meeting, some concerns were raised regarding potential conflicts for the Petitioner. She further explained that the Petitioner addressed these concerns with her supervisor and her supervisor assured that she would reassign any cases presenting a conflict. Staff Attorney Popova Papa informed that the Petitioner also addressed these concerns with her future private employer, who represented that the Petitioner would not be assigned to any families with a parent on probation. Staff Attorney Popova Papa stated that she amended the advisory opinion to reflect these restrictions. In response to Commissioner Bennett, the Petitioner stated her supervisor can assign or re-assign matters presenting conflicts to any of the other nine parole officers. She further informed that her private employment will focus on domestic violence offenders. In response to Commissioner Palumbo’s concern regarding the application of the business associate analysis, the Petitioner stated that people usually stay on supervised visitation or leave the program and it is unlikely that they will leave the program and then return. The Petitioner represented that she would not feel comfortable supervisingsomeone she had previously supervised on probation. In response to Commissioner Corrente, Executive Director Gramitt noted that the advisory opinion can be amended to include the Petitioner’s representation that she will not supervise cases involving former clients. In response to Acting Chair Quinn, the Petitioner stated that she and her fellow officers do not discuss former clients as a committee. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Wendy Allmendinger, a probation and parole officer at the Rhode Island Department of Corrections. The final advisory opinion was that of: Kelly Levesque, the Town Sergeant for the Town of Tiverton, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her simultaneously serving as the Co-Chair of the Tiverton Days Committee, a group of volunteers who organize family friendly events and activities for residents of the Town of Tiverton. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. In response to Commissioner Bennett, the Petitioner informed that she has not yet had to remove someone from a meeting and that the Police Chief is her back-up if she needs assistance. In response to Acting Chair Quinn, the Petitioner stated that the Days Committee is not a 501(c)(3) entity and is a quasi-Town committee. In further response to Acting Chair Quinn, the Petitioner stated that she is the Co-Chair of the Days Committee in her private capacity as a parent. In response to Commissioner Corrente, Executive Director Gramitt explained that the Petitioner should disclose her position as Co-Chair of the Days Committee on her financial disclosure statements because it is a leadership position. He stated that the Town has not established or defined the committee by ordinance and there is no real evidence of whether it is a public or quasi-public entity. Executive Director Gramitt stated that the financial disclosure instructions are broad enough to include disclosure of the Petitioner’s position. In response to Acting Chair Quinn, the Petitioner stated that the Days Committee has offered to pay for police services at its events to avoid any confusion as to her role, but the police refuse to accept payment for their volunteer work. Executive Director Gramitt stated that the function and role of the Days Committee would be clearer if the Town Council passed an ordinance to bring the committee under its umbrella. Upon motion made by Commissioner Salk and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Kelly Levesque, the Town Sergeant for the Town of Tiverton. Executive Session. At 9:55 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on December 10, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Gina M. Raimondo , Complaint No. 2019-11, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: Sarah Markey , Complaint No. 2019-9, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. Litigation update re: Francis X. Flaherty v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC-2019-5088, pursuant to R.I. Gen. Laws § 42-46-5(a)(2). 5. Motion to return to Open Session. At 10:07 a.m., the Commission reconvened in Open Session. The next order of business was: Report on actions taken in Executive Session. Acting Chair Quinn reported that the Commission took the following actions in Executive Session: 1. Voted (3-0) to approve the minutes of the Executive Session held on December 10, 2019. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; Arianne Corrente; and Kyle P. Palumbo. ABSTENTIONS: J. Douglas Bennett; Timothy Murphy; and Robert A. Salk.] 2. Unanimously voted (6-0) in the matter of In re: Gina M. Raimondo, Complaint No. 2019-11, to enlarge time for investigation for 60 days. 3. Unanimously voted (6-0) in the matter of In re: Sarah Markey, Complaint No. 2019-9, to enlarge time for investigation for 60 days. 4. Litigation update in Francis X. Flaherty v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC-2019-5088. The next order of business was: Motion to seal minutes of Executive Session held on January 7, 2020. Upon motion made by Commissioner Murphy and duly seconded by Acting Chair Quinn, it was unanimously VOTED: To seal the minutes of the Executive Session held on January 7, 2020. The next order of business was: Election of Officers. Acting Chair Quinn informed that there are two Commissioners absent from today’s meeting and there is one vacant seat. She stated that if the Commissioners in attendance are so inclined, the election of officers can be continued to a future meeting when there are more Commissioners attending. Commissioner Murphy stated that the Commissioners attending today’s meeting represent a good number to proceed and he expressed concern with continuing the election to a future date at which the attendance might be the same or lower. In response to Commissioner Palumbo, Executive Director Gramitt stated that the Open Meetings Act does not allow for voting by proxy. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Palumbo, it was VOTED: To continue the election of officers to the Commission’s next meeting. AYES: Marisa A. Quinn and Arianne Corrente. NOES: J. Douglas Bennett; Timothy Murphy; Kyle P. Palumbo; and Robert A. Salk. The motion failed. Legal Counsel DeSimone advised that the next steps are to call for the nominations of officers, to discuss, and to vote. Commissioner Corrente nominated Acting Chair Quinn for Chair. Commissioner Murphy nominated himself for Chair. Commissioner Murphy addressed the Commission and discussed his background and vision for the Ethics Commission. Acting Chair Quinn addressed the Commission and discussed her experience and service on the Commission and as Vice-Chair. She stated that she was pleased with the interest of others in serving in this role. After discussion and upon motion made by Commissioner Corrente and duly seconded by Commissioner Salk, it was unanimously VOTED: To elect Marisa A. Quinn as Chair. [*Reporter’s Note: Following the Commission’s unanimous vote, Acting Chair Quinn became Chair.] Chair Quinn nominated Arianne Corrente for Vice Chair. After discussion and upon motion made by Chair Quinn and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To elect Arianne Corrente as Vice Chair. [**Reporter’s Note: Following the Commission’s unanimous vote, Secretary Corrente became Vice Chair.] Commissioner Corrente nominated Kyle P. Palumbo for Secretary. After discussion and upon motion made by Commissioner Corrente and duly seconded by Commissioner Bennett, it was VOTED: To elect Kyle P. Palumbo as Secretary. Director’s Report: Status report and updates. a.) Complaints and investigations There are 11 complaints pending, including three 2018 non-filing complaints. b.) Advisory opinions There are four advisory opinions pending. c.) Access to Public Records Act requests since last meeting Four APRA requests were received since the last meeting, three of which were granted within one business day and one of which required discussion with legal staff but was still completed within 10 days as required by statute. d.) Status of 2018 and 2019 Financial Disclosure Executive Director Gramitt stated that 4,285 financial statements were filed for 2018 and 88% of filers filed online, which is a 2% increase in online filings. He informed that the 2019 Financial Statements are now available online and the deadline for filing is April 24, 2020. Commissioner Bennett left the meeting at 10:36 a.m. Executive Director Gramitt informed that he attended the COGEL conference in December 2019. He stated that more than 500 people attended the conference and that he has been selected as the next President of COGEL in 2021. Executive Director Gramitt informed that Chief Investigator Steve Cross received a letter of commendation for the ethics training he provided to the police departments. The final order of business was: New Business and General Comments from the Commission. Commissioner Corrente requested future discussion regarding the idea of a consent agenda, as suggested by Commissioner Murphy, with respect to advisory opinions and its potential impact on transparency. Chair Quinn expressed concern with the idea of a consent agenda, stating that there have been times when she was inclined to decide a certain way after reading a draft advisory opinion, but the details presented at the Commission meeting changed her position. Commissioner Murphy responded that if this process were implemented, any Commissioner could request to pull an item off the consent agenda for further discussion. Executive Director Gramitt stated that advisory opinion procedures will be put on a future meeting’s agenda for discussion. Commissioner Salk requested discussion regarding initial determination and the Commission’s procedure by which a complaint becomes public once accepted and before the Commission knows all the facts. He recommended that the Commission consider not releasing the name of the respondent until after the investigation has concluded. Executive Director Gramitt cautioned that if the Commission is inclined to do so, the Commission should be prepared that this will be viewed negatively by the public as a reversal of transparency. Chair Quinn expressed concern over backing away from transparency. Executive Director Gramitt informed that in the late 1980s and early 1990s, the Commission was perceived as operating in secret with respect to conducting investigations of complaints. He explained that in the 1990s, the investigative process opened up, promoting transparency. Executive Director Gramitt represented that any reversal of process on the Commission’s part in this regard would be viewed as a step backwards. Commissioner Salk suggested, alternatively, that the Commission publicly report out, after an initial determination has been made, that said determination is not a finding or decision as to the validity of the allegations. Executive Director Gramitt stated that the Staff will prepare draft language in this regard and bring it before the Commission for discussion as an agenda item at a future meeting. At 10:58 a.m., upon motion made by Commissioner Palumbo and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adjourn. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary