Minutes January 28, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION January 28, 2020 The Rhode Island Ethics Commission held its 2nd 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 28, 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, Chair Timothy Murphy Kyle P. Palumbo, Secretary Robert A. Salk M. Therese Antone* Emili B. Vaziri The following Commissioner(s) were not present: J. Douglas Bennett and Arianne Corrente, Vice Chair. 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 9:05 a.m., the Chairopened the meeting. The first order of business was: Approval of minutes of the Open Session held on January 7, 2020. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Palumbo, it was VOTED: To approve the minutes of the Open Session held on January 7, 2020. AYES: Marisa A. Quinn; Timothy Murphy; Robert A. Salk; and Kyle P. Palumbo. ABSTENTIONS: Emili B. Vaziri. 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: Christine Monteiro, DAOM/CH, MSTCM, a member of the Rhode Island Department of Health Acupuncture Advisory Board, requests an advisory opinion regarding whether the Code of Ethics prohibits her from lobbying, in her private capacity as a Doctor of Acupuncture, for the amendment of legislation that would permit specific licensed healthcare professionals, who have completed recognized training, to use a 5-point ear acupuncture protocol to treat individuals who have substance abuse and behavioral issues. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. In response to Commissioner Palumbo, the Petitioner stated that the Board will not take a public position on the legislation. In response to Commissioner Murphy, Staff Attorney Radiches informed that the class exception does not apply here because the Petitioner is not taking any official action. Upon motion made by Commissioner Vaziri and duly seconded by Commissioner Salk, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Christine Monteiro, DAOM/CH, MSTCM, a member of the Rhode Island Department of Health Acupuncture Advisory Board. The next advisory opinion was that of: Melissa Tiernan, DAOM/CH, MSOM, a member of the Rhode Island Department of Health Acupuncture Advisory Board, requests an advisory opinion regarding whether the Code of Ethics prohibits her from appearing before the Rhode Island General Assembly, in her private capacity as a Doctor of Acupuncture, to support the amendment of legislation that would permit specific licensed healthcare professionals, who have completed recognized training, to use a 5-point ear acupuncture protocol to treat individuals who have substance abuse and behavioral issues. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Radiches explained that this advisory opinion is like the previous one presented except that this Petitioner is not a lobbyist. In response to Chair Quinn, the Petitioner stated that, in her experience, the Board has not been asked to weigh in on legislation. Upon motion made by Commissioner Salk and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Melissa Tiernan, DAOM/CH, MSOM, a member of the Rhode Island Department of Health Acupuncture Advisory Board. The next advisory opinion was that of: Ferdinand C. Ihenacho, P.E., Chief Civil Engineer, Transportation Planning, Rhode Island Department of Transportation (RIDOT), requests an advisory opinion regarding whether plans that he prepares in his private capacity may be submitted to RIDOT’s Highway Maintenance Division for its review and approval of a permit application to be filed by a private client. *Commissioner Antone arrived at 9:17 a.m. Senior Staff Attorney D’Arezzo presented the Commission Staff recommendation. The Petitioner was present. The Petitioner addressed the Commission and inquired whether the plans that he prepares may be submitted if his name and stamp do not appear thereon, consistent with Advisory Opinion 2005-15 cited in the draft. Staff Attorney D’Arezzo explained that Advisory Opinion 2005-15 was issued based on that petitioner’s express representation that his name and stamp would not be used. She stated that, while the draft opinion may be amended to include any affirmative representations that the Petitioner may make today, said facts may alter the analysis and outcome. Executive Director Gramitt stated that the Commission can vote on and issue the opinion as drafted and revisit the issue of the Petitioner’s express representations in the context of a future advisory opinion based on more specific facts. Senior Staff Attorney D’Arezzo noted that the Petitioner cannot designate an employee or associate to submit his plans if the Petitioner is barred from doing so under § 36-14-5(e). In response to Commissioner Palumbo, Executive Director Gramitt stated that this advisory opinion provides that the Petitioner cannot submit plans with his name or stamp thereon, but the Petitioner can return for another opinion in the future based on more specific facts as they arise. Upon motion made by Commissioner Antone and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Ferdinand C. Ihenacho, P.E., Chief Civil Engineer, Transportation Planning, Rhode Island Department of Transportation (RIDOT). The next advisory opinion was that of: Nathaniel R. Tingley, the Vice President of Business Development at the Rhode Island Commerce Corporation, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon his potential private employment with Ørsted, a Denmark-based renewable energy company. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. The Petitioner addressed the Commission and stated that he would be an employee of and not a lobbyist for Ørsted. He explained that Ørsted wants to build up its business in Rhode Island and establish projects to that end. The Petitioner inquired whether, as an employee of Ørsted, he would be able to refer upcoming opportunities to the Commerce Corporation that would benefit the state. In response to Chair Quinn, the Petitioner informed that he will receive a salary but no bonuses for his work. Staff Attorney Popova Papa explained that while the state might benefit financially from Ørsted projects, Ørsted would also be financially impacted by such projects. In response to Commissioner Murphy, the Petitioner stated that there are other persons at Ørsted that could approach the Commerce Corporation and provide information. Commissioner Antone noted that the prohibition against the Petitioner’s appearing before the Commerce Corporation on his or his private employer’s behalf applies only for one year. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Nathaniel R. Tingley, the Vice President of Business Development at the Rhode Island Commerce Corporation. The final advisory opinion was that of: The Town of New Shoreham Town Council, by and through its Solicitor, Katherine A. Merolla, requests an advisory opinion regarding whether the Town Council may hear and decide a matter pursuant to the Rule of Necessity relating to the potential amendment of a New Shoreham ordinance that would provide for the issuance of municipal permits for the operation of mobile food establishments in conformance with State law, given that conflicts of interest prevent the Town Council from achieving a necessary quorum of three (3) members. Staff Attorney Radiches presented the Commission Staff recommendation. Assistant Solicitor Steven Merolla, Esq., was present on behalf of the New Shoreham Town Council. In response to Chair Quinn, Attorney Merolla informed that the issue of conflicts arises periodically, given that there are fewer than 900 residents of Block Island, but not usually with four council members recusing. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Vaziri, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to The Town of New Shoreham Town Council, by and through its Solicitor, Katherine A. Merolla. Executive Session. At 9:44 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Salk, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on January 7, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Raymond Stewart, Jr. , Complaint No. 2020-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: Janice McClanaghan , Complaint No. 2019-15, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. In re: Michael Vendetti , Complaint No. 2019-16, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 5. In re: Chris Mannix , Complaint No. 2019-17, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 6. In re: Natalie McDonald , Complaint No. 2019-18, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 7. 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). 8. Motion to return to Open Session. At 10:32 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: 1. Voted (4-0) to approve the minutes of the Executive Session held on January 7, 2020. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; Timothy Murphy; Robert A. Salk; and Kyle P. Palumbo. ABSTENTIONS: M. Therese Antone and Emili B. Vaziri.] 2. Voted (6-0) in the matter of In re: Raymond Stewart, Jr., Complaint No. 2020-1, to initially determine that the Complaint states facts that, if true, are sufficient to constitute a violation of the Code of Ethics and authorized an investigation. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; M. Therese Antone; Timothy Murphy; Robert A. Salk; and Emili B. Vaziri. RECUSALS: Kyle P. Palumbo.] Chair Quinn noted that an Inital Determination is a preliminary vote that should not be construed as an opinion regarding the truth of the facts alleged in the complaint but is merely a vote to conduct an investigation into the allegations raised. 3. Unanimously voted (6-0) in the matters of In re: Janice McClanaghan, Complaint No. 2019-15, In re: Michael Vendetti, Complaint No. 2019-16, In re: Chris Mannix, Complaint No. 2019-17, and In re: Natalie McDonald, Complaint No. 2019-18, to deny a Motion to Quash filed by a non-party witness. 4. Unanimously voted (6-0) in the matters of In re: Janice McClanaghan, Complaint No. 2019-15, In re: Michael Vendetti, Complaint No. 2019-16, In re: Chris Mannix, Complaint No. 2019-17, and In re: Natalie McDonald, Complaint No. 2019-18, to require compliance with the Prosecution’s subpoena by February 7, 2020. 5. Voted (2-4) in the matters of In re: Janice McClanaghan, Complaint No. 2019-15, In re: Michael Vendetti, Complaint No. 2019-16, In re: Chris Mannix, Complaint No. 2019-17, and In re: Natalie McDonald, Complaint No. 2019-18, to permit Legal Counsel to the Respondent, Chris Mannix, to be heard on his objection to being asked to leave the hearing on the Motion to Quash filed by a non-party witness.[1] [Reporter’s Note: The vote was as follows: AYES: Kyle. P. Palumbo and Emili B. Vaziri. NOES: Marisa A. Quinn; M. Therese Antone; Timothy Murphy; and Robert A. Salk. The motion failed.] 6. 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 28, 2020. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To seal the minutes of the Executive Session held on January 28, 2020. The next order of business was: Discussion and voting regarding Resolution in Appreciation of former Commission Chair Ross Cheit, Ph.D. Chair Quinn expressed appreciation for former Chair Cheit’s hard work for the Ethics Commission and for the State over the years and stated that he established a high bar for others to follow. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To adopt the Resolution of the Rhode Island Ethics Commission in Recognition and Profound Appreciation of Distinguished Service by Chairperson Ross E. Cheit, Ph.D. The next order of business was: Director’s Report: Status report and updates. a.) Complaints and investigations There are 12 complaints pending, including nine substantive and three non-filing complaints. b.) Advisory opinions There are eleven advisory opinions pending. c.) Access to Public Records Act requests since last meeting Three APRA requests were received since the last meeting, all of which were granted within one business day. One request related to a recusal form, another related to an advisory opinion, and the last one related to a financial disclosure statement. Executive Director Gramitt noted that discussion and comments raised during the New Business and General Comments section of any given Commission meeting should be brief. He explained that Chair Quinn will now be publicly providing a disclaimer when reporting out initial determinations. Executive Director Gramitt stated that the advisory opinion procedure will be noticed as an item for discussion on a future agenda. He informed that he will present to the Commission at its next meeting a memorandum setting forth the history of the confidentiality of complaints, starting from the late 1980s, when the process was closed, to the present time and the shift in focus to transparency. The final order of business was: New Business and General Comments from the Commission. There was no new business. At 10:40 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To adjourn. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] This motion was reported out by the Chair during Open Session as a motion to invite the Respondents’ attorneys to attend the Executive Session hearing on the Motion to Quash.