Minutes January 12, 2021 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION January 12, 2021 The Rhode Island Ethics Commission remotely conducted its 1st meeting of 2021 in Zoom webinar format at 9:00 a.m. on Tuesday, January 12, 2021, pursuant to the notice published at the Commission offices, 40 Fountain Street, Providence, Rhode Island, and electronically with the Rhode Island Secretary of State.[1] The following Commissioners were present: Marisa A. Quinn, Chair M. Therese Antone Arianne Corrente, Vice Chair Timothy Murphy Kyle P. Palumbo, Secretary Emili B. Vaziri* *Commissioner Vaziri initially was present via audio link and subsequently joined via video link at approximately 9:16 a.m. The following Commissioners were not present: J. Douglas Bennett and Robert A. Salk. 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; Peter J. Mancini; and Gary V. Petrarca. At 9:02 a.m., the Chairopened the meeting. The first order of business was: Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues. Executive Director Gramitt stated that the Commission has been operating pursuant to the Governor’s executive orders relating to remote meetings during the COVID-19 pandemic. He explained that following the adjournment of Open Session, everyone will leave the meeting and the Commission will convene in Executive Session in a separate webinar meeting, after which the Commission will return to Open Session to provide a live report on all actions taken in Executive Session. Executive Director Gramitt informed that a written report of all actions taken in Executive Session will be published and available on the Commission’s website after the meeting ends. Copies of the written report can also be requested by calling the Commission at (401) 222-3790 or emailing ethics.email@ethics.ri.gov. He stated that anyone in attendance who experiences technical issues related to the Commission meeting may call the office for assistance. The next order of business was: Approval of minutes of the Open Session held on December 8, 2020. Upon motion made by Commissioner Antone and duly seconded by Commissioner Vaziri, it was unanimously VOTED: To approve the minutes of the Open Session held on December 8, 2020. The next order of business was: Director’s Report: Status report and updates. a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing Executive Director Gramitt stated that the agenda for today’s Commission meeting and copies of the draft advisory opinions noticed on said agenda are available on the Commission’s website. He explained that the temporary changes in daily office operations and procedures in response to COVID-19 remain in place and most of the office’s operations and communications are taking place electronically. He informed that the Governor’s recent executive order has extended the provision for public bodies to conduct remote meetings through February 4, 2021. b.) Complaints and investigations pending There are five complaints pending. Executive Director Gramitt informed that a probable cause hearing has been noticed for the Commission’s January 26, 2021 meeting and adjudication of the Corrigan matters has been noticed for March 2, 2021. He stated that the adjudication, which should last approximately two to three hours, will likely be the only matter scheduled for the March 2, 2021 meeting. c.) Advisory opinions pending There are 14 advisory opinions pending, with eight noticed on today’s meeting agenda. Executive Director Gramitt explained that the number of pending advisory opinions does not reflect the number of advisory opinion requests that are withdrawn and the amount of work that the staff attorneys perform on those requests, including research and drafting, before they are withdrawn. He stated that for approximately every advisory opinion presented, another request has been withdrawn after a petitioner has been helped by the staff attorneys without the need for a formal opinion. d.) Access to Public Records Act requests since last meeting There were four APRA requests received since the last meeting, all of which were granted within one business day. Executive Director Gramitt informed that the requests related to advisory opinions, complaints, and financial disclosure. e.) Financial Disclosure, update on 2019 and 2020 filing years Online filing of the 2020 Financial Statement is now underway on the Commission’s website. The staff is currently interacting with municipal clerks to obtain accurate lists of public officials who are required to file. Letters to all required filers will be mailed in March of this year and the filing deadline is the last Friday in April. Executive Director Gramitt referenced the discussion of Commission Regulation 5002 that took place during consideration of an advisory opinion at the last meeting and informed that further discussion on said regulation will likely be noticed for the next Commission meeting. The next order of business was that of: 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 opinionwas that of: Michael W. Favicchio, a former member of the Cranston City Council, who is privately self-employed as an attorney, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients before the Cranston Probate Court within one year from the date of his official severance from the Cranston City Council. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Michael W. Favicchio, a former member of the Cranston City Council, who is privately self-employed as an attorney. The next advisory opinion was that of: The Board of Commissioners for the Lime Rock Fire Department, by and through its chairperson, requests an advisory opinion regarding: (i) whether three commissioners who have family members employed by the Fire Department may participate in the decision to accept or reject, as a whole, a collective bargaining agreement addressing the employment of their family members; and (ii) whether the same three commissioners may, pursuant to the Rule of Necessity, participate in the negotiation of said collective bargaining agreement. Staff Attorney Radiches presented the Commission Staff recommendation. Petitioners Joseph Nadro and Ryan Drugan, members of the Lime Rock Fire District Board of Commissioners (“Board”), and Ron Rivet, the Board’s Chairperson, were present via video links. The third Petitioner, Arthur Jacques, could not attend but, like Petitioners Nadro and Drugan, had confirmed support for the request. In response to Commissioner Antone, Staff Attorney Radiches explained that the Lime Rock Fire Department’s 2015 Collective Bargaining Agreement (“CBA”) was set to expire in 2018 but had not been renewed. She informed that the Fire Department is still negotiating the terms of the CBA and hopes to finalize an agreement this year. In response to Chair Quinn, Staff Attorney Radiches stated that, generally, the Chair and the Board’s attorney have been involved in the CBA negotiations. In response to Commissioner Palumbo, Mr. Rivet explained that negotiations are not required to take place at a public meeting. In response to Commissioner Murphy, Staff Attorney Radiches confirmed that the class exception does not apply to issues involving nepotism. In response to Commissioner Palumbo, Mr. Rivet stated that Board members are not employees of the Fire District and are not subject to the CBA. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to the Board of Commissioners for the Lime Rock Fire Department, by and through its chairperson. The next advisory opinion was that of: Timothy Walsh, the Chief of the Lime Rock Fire Department, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing to advise the Chairperson of the Board of Commissioners for the Lime Rock Fire Department concerning the negotiation of a collective bargaining agreement addressing the employment of the firefighters within the Fire Department, given that a firefighter within the Fire Department became the Petitioner’s son-in-law in November of 2020. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner and the Board’s Chairperson, Ron Rivet, were present via video links. In response to Chair Quinn, the Petitioner stated that his role as Chief of the Lime Rock Fire Department includes advising the Board’s Chairperson. In response to Commissioner Palumbo, the Petitioner represented that he is not subject to the CBA. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Timothy Walsh, the Chief of the Lime Rock Fire Department. The next advisory opinion was that of: Timothy Walsh (2), the Chief of the Lime Rock Fire Department, requests an advisory opinion regarding whether the proposed alternate supervisory chain of command is sufficient to insulate the Petitioner from conflicts of interest, given that his son-in-law is employed as a firefighter within the Fire Department. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner and the Board’s Chairperson, Ron Rivet, were present via video links. Mr. Rivet inquired whether his responsibilities under the proposed alternate supervisory chain of command would transfer to the next Chairperson and/or Chief of the Fire Department. Staff Attorney Radiches stated that each matter that arises is analyzed according to its specific facts. Chair Quinn explained that the successor to the Chairperson and/or Chief would have to be apprised of the alternate chain of command and agree to abide by it. In response to Chair Quinn’s inquiry regarding the impetus behind this advisory opinion request, Mr. Rivet stated that new developments in recent months involving family members joining the Fire Department and the advice of the Board’s attorney prompted him to seek this opinion on behalf of the Petitioners. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Timothy Walsh, the Chief of the Lime Rock Fire Department. The next advisory opinion was that of: Jessica Leah DeMartino, the Director of Social Services in the Town of Exeter, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in performing her public duties, given that she is privately employed as a grant writer for the Rhode Island Center Assisting Those in Need, a food pantry located in the Town of Charlestown. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Chair Quinn, the Petitioner stated that she has already begun implementing the recommendation in the draft to list the individual food pantries. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Jessica Leah DeMartino, the Director of Social Services in the Town of Exeter. The next advisory opinion was that of: Richard Keene, a member of the North Smithfield Planning Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participation in the Planning Board’s discussions and vote relative to a particular solar project application, given that representatives of the North Smithfield Heritage Association (“NSHA”), a private non-profit organization, of which he serves as a member of the Board of Directors and as its President, have provided, and are likely to provide again, public comment on the application during public hearings of the Planning Board. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Commissioner Palumbo, the Petitioner explained that the Board of the NSHA discussed the subject application and voted to send a letter to the Planning Board indicating the value of the solar project as set forth in the application, but the Petitioner did not vote. In further response to Commissioner Palumbo, the Petitioner stated that the NSHA’s stipulations were part of the testimony that the Planning Board considered in approving the project. In response to Commissioner Palumbo, the Petitioner explained that part of the NSHA’s purpose is to maintain abandoned historic cemeteries in the Town but hopes that if the Town acquires the subject land, it will take over its maintenance. Further discussions ensued regarding whether the Petitioner could participate during the public comment period of the hearings as a member of the NSHA. Staff Attorney Popova Papa stated that the Petitioner represented that there will be no financial impact to him. In response to Commissioner Palumbo, Executive Director Gramitt explained that the Code does not provide any guidance as to the meaning of “or otherwise” in § 36-14-5(a). He noted that the Commission has read section 5(a) as being modified by section 7(a), which specifies that a substantial conflict of interest involves a financial interest. In response to Chair Quinn, the Petitioner stated that the archaeological reports reveal what was discovered in the archaeological digs and those reports are stored in the archives and available to the public. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, attached hereto, to Richard Keene, a member of the North Smithfield Planning Board. AYES: Marisa A. Quinn; M. Therese Antone; Arianne Corrente; Timothy Murphy; and Emili B. Vaziri. NOES: Kyle P. Palumbo. The next advisory opinion was that of: Erica Vieira, the Administrative and Payroll Clerk for the Johnston Police Department, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon her, given that her spouse is the Deputy Chief of the Johnston Police Department. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via audio link and the Johnston Police Chief, Joseph Razza, was present via video link. In response to Chair Quinn, the Petitioner stated that Chief Razza reviews her work. Chief Razza added that he reviews and gives final approval of the Petitioner’s data input, and he signs off on anything that must be submitted to the payroll department. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Erica Vieira, the Administrative and Payroll Clerk for the Johnston Police Department. Due to technical difficulties, the final advisory opinion was continued until after the Commission concluded Executive Session and reconvened in Open Session. The next order of business was: New Business proposed for future Commission agendas and general comments from the Commission. There was none. At 10:09 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on December 8, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) Motion to return to Open Session. At 10:13 a.m., the Commission reconvened in Open Session. The next order of business was: Report on actions taken in Executive Session. Chair Quinn reported that the Commission took the following actions in Executive Session, which information will also be available on the Commission’s website: 1. Unanimously voted (6-0) to approve the minutes of the Executive Session held on December 8, 2020. 2. Unanimously voted (6-0) to return to Open Session. The final order of business was: Walter B. Mahony III, a member of the Charlestown Planning Commission, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Commission’s discussions and voting relative to applications associated with a proposed subdivision to be located on land that partially abuts a road owned by a private homeowners’ association to which the Petitioner belongs. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. The Petitioner addressed the Commission and noted additional advisory opinions that he had reviewed but that were not cited in the draft. In response to Commissioner Palumbo, Staff Attorney Popova Papa stated that, since the Bonnet Shores complaints were resolved, this was the first advisory opinion to apply a business associate analysis to the relationship between a homeowner and the homeowners’ association to which he or she belongs. Executive Director Gramitt explained that the term “business associate” is broadly defined in the Code of Ethics and whether a person serves on an organization’s board of directors only addresses one aspect of the analysis. He noted that individuals may be considered business associates by virtue of their dealings and interactions, such as parties to a contract, attorneys and their clients, and landlords and tenants. Legal Counsel DeSimone added that in the Bonnet Shores complaints, the respondents were not officers of the Bonnet Shores Beach Club. In response to Commissioner Palumbo, Staff Attorney Popova Papa stated that, in her analysis, she considered the Petitioner’s ongoing obligation to pay annual assessments to the homeowners’ association (“AIC”) a responsibility that he cannot refuse to fulfill while he is a homeowner, as well as AIC’s ongoing responsibility to maintain the property and the road. Commissioner Murphy stated that he was comfortable with the draft and that it did not prohibit the Petitioner from participating and Chair Quinn concurred. In response to Chair Quinn, Staff Attorney Popova Papa stated that whether the Petitioner would be required to recuse if an AIC representative appeared before the Petitioner as a member of the Planning Commission would depend on the specific factual circumstances. The Petitioner queried how he should proceed if the AIC should testify before the Planning Commission. Chair Quinn urged the Petitioner to be cautious and contact Staff Attorney Popova Papa. Executive Director Gramitt explained to the Petitioner that when the AIC appears before his public body as a party to or participant in a matter, he should either contact the Commission for advice or recuse from both discussion and vote. Executive Director Gramitt further stated that if the AIC appears during public comment, the Petitioner can likely participate in the matter. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Walter B. Mahony III, a member of the Charlestown Planning Commission. At 10:43 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On March 9, 2020, Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, the Governor issued Executive Order 20-46 on June 12, 2020, which, in part, relieved public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act. Pursuant to the issuance of Executive Order 21-01, on January 6, 2021, said relief was extended through February 4, 2021.