Minutes February 6, 2018 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION February 6, 2018 The Rhode Island Ethics Commission held its 3rd meeting of 2018 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, February 6, 2018, 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: Ross Cheit, Chair Arianne Corrente Marisa A. Quinn, Vice Chair Timothy Murphy M. Therese Antone James V. Murray J. Douglas Bennett The following Commissioner(s) were not present: Robert A. Salk; and John D. Lynch, Jr. Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Jason Gramitt, Education Coordinator/Staff Attorney; 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 Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on January 23, 2018. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was VOTED: To approve the minutes of the Open Session held on January 23, 2018. AYES: Arianne Corrente; Timothy Murphy; James V. Murray; Marisa A. Quinn; and Ross Cheit ABSTENTIONS: M. Therese Antone; and J. Douglas Bennett. 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: Christopher B. Frenier, a Probation and Parole Supervisor for the Rhode Island Department of Corrections, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, on his own time and in his private capacity, as a part-time counselor with a private psychiatric hospital in Massachusetts. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Christopher B. Frenier, a Probation and Parole Supervisor for the Rhode Island Department of Corrections. The next advisory opinion was that of: Michael Babbit,a member of the Town of Lincoln Budget Board, requests an advisory opinion regarding whether he may participate in the Lincoln High School Building Committee’s selection and oversight of a construction manager for the high school renovation project, given that it is expected that his private employer will submit a bid. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. The Petitioner informed that he wanted to clarify the question presented in the draft advisory opinion, namely, that he does not wish to participate in the selection and oversight of a construction manager for the high school renovation project because his employer, Dimeo, will submit a bid. He explained that he participated in the first two stages of the process but recused at the third stage involving selection of a construction manager. The Petitioner further stated that he does not have any decision-making authority for the Town in deciding who gets paid. He explained that he is an HVAC, plumbing, and fire protection estimator for Dimeo and has no decision-making authority for the company. The Petitioner stated that he would like to stay on the Building Committee but not be involved in the selection of a construction manager. In response to Commissioner Antone, the Petitioner stated that if Dimeo were awarded the construction manager contract, he could be objective as to the quality of its work performance and the supplies it uses. In response to Chair Cheit, the Petitioner agreed that he is a business associate of Dimeo. Chair Cheit stated that if his employer did not bid, the Petitioner could participate, but the Code of Ethics does not allow said participation given the business associate relationship that exists between him and Dimeo. In response to Commissioner Murphy, the Petitioner informed that he was not involved in putting together the Request for Proposals for this contract. Commissioner Bennett thanked the Petitioner for his service and stated that Dimeo should be allowed to bid on this contract. Commissioner Corrente commented that, as a resident of Lincoln, she understood that his expertise would be helpful, but that recusal is the correct choice. Uponmotion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was VOTED: To issue an advisory opinion, attached hereto, to Michael Babbit, a member of the Town of Lincoln Budget Board. AYES: J. Douglas Bennett; Arianne Corrente; Timothy Murphy; James V. Murray; Marisa A. Quinn; and Ross Cheit. ABSTENTIONS: M. Therese Antone. Chair Cheit concurred with the sentiments regarding the Petitioner’s public service. The final advisory opinion was that of: Gregory Maxwell, AIA, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing clients before his own board. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. In response to Commissioner Murphy, Staff Attorney Popova Papa stated that the Petitioner had submitted two previous advisory opinion requests. She further informed that, with respect to his first request, he was not certain whether he met the requirements for an historic architect and then withdrew his request on the basis that he was not going to represent the subject clients. Staff Attorney Popova Papa further informed that, after reviewing his qualifications, the Petitioner submitted a second request and an advisory opinion was issued to him. In response to Commissioner Murphy, Staff Attorney Popova Papa stated that, when petitioners seek an advisory opinion, they must represent that they are qualified as historic architects. In response to Commissioner Quinn, Staff Attorney Popova Papa further stated that the staff attorneys do not conclude whether a petitioner is an historic architect or not, but they accept the representations of the petitioner. In response to Chair Cheit, Staff Attorney Popova Papa informed that she did look up the buildings referenced by the Petitioner and noted that they were historic buildings but the advisory opinion process is not an investigative one. Uponmotion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Gregory Maxwell, AIA, a member of the East Greenwich Historic District Commission. The next order of business was: Legislative Update: A general discussion of the General Assembly’s 2018 legislative session including updates on legislative ethics trainings, discussion of the Commission’s legislative priorities, and a review of the Commission’s procedures for tracking legislation that may impact the Commission’s work or the Code of Ethics. Staff Attorney Gramitt informed that each year, the Commission Staff reviews any legislative bills that are introduced which might impact the Ethics Commission, and the Staff brings them before the Commission to decide what to do. He stated that the Commission can decide to wait and see how a bill progresses or it can direct the Staff to take a position at the legislative hearings on the bill at issue. Staff Attorney Gramitt informed that the educational training that he conducts at the General Assembly creates an avenue for open communication between the legislature and the Ethics Commission. He further informed that, at a recent training session in the House, a legislator raised one question regarding financial disclosure and the requirement to disclose business ownership interests greater than $5,000 or 10%. Staff Attorney Gramitt stated that the legislator’s question involved a two-part inquiry: (1) whether it is time to raise the $5,000 limit; and (2) whether to require disclosure of publicly-traded stocks. Staff Attorney Gramitt stated that the legislator pointed out that for filers with a large portfolio which may be managed by a broker, said filer may not know which stocks exceed $5,000 at the time of filing the financial disclosure statement. Staff Attorney Gramitt further stated that there is also a question of where the conflicts exist in situations involving a filer who owns a small amount of a publicly-traded security. Staff Attorney Gramitt noted that these issues raise the question of whether the legislature should amend the statute or the Commission should implement a regulation to this effect. He also noted that the statute does not address stocks but the Commission has interpreted it to require disclosure of stocks. Staff Attorney Gramitt informed that the $5,000-threshold amount for disclosing business ownership interests has been in effect since 1977, and this may be a good opportunity to have a discussion of these matters. Chair Cheit stated that the Commission can begin discussions before the summer and directed that these matters be placed on an upcoming agenda. Commissioner Bennett concurred that this is a subject worthy of discussion. In response to Chair Cheit, Staff Attorney Gramitt stated that these issues will be placed on an upcoming agenda and he will inform the legislator who presented the question and the Speaker of the House that the Commission plans to examine these points. Director’s Report. Executive Director Willever reported that there were seven (7) complaints, including one (1) non-filing complaint, and eleven (11) advisory opinions pending. He stated that three (3) APRA requests were received since the last meeting, all of which were granted within one business day. Executive Session. At 9:37 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on January 23, 2018, pursuant to R.I. Gen. Laws § 42-46-5(2) and (4). 2. Motion to return to Open Session. The Commission reconvened in Open Session at 9:39 a.m. The next order of business was: Report on actions taken in Executive Session. Chair Cheit reported that the Commission took the following actions in Executive Session: 1. Unanimously voted (5-0) to approve the minutes of the Executive Session held on January 23, 2018. [Reporter’s Note: The vote was as follows: AYES: Arianne Corrente; Timothy Murphy; James V. Murray; Marisa A. Quinn; and Ross Cheit. ABSTENTIONS: M. Therese Antone; and J. Douglas Bennett.] The next order of business was: General Comments. Chair Cheit stated that the listing for the Executive Director/Chief Prosecutor was finalized and the position was listed as of February 3, 2018, and will be open through March 4, 2018. The Personnel Subcommittee will review all materials received and meet after the March 13, 2018 meeting to discuss. At 9:40 a.m., a short break was taken before the Public Workshop noticed for 10:00 a.m. At 10:00 a.m., the Public Workshop began. Public Workshop: The Ethics Commission will hold a public workshop to consider previously submitted written comments, to hear oral comments, and to have a discussion relative to the following two questions, consistent with a previously published Advance Notice of Proposed Rulemaking issued pursuant to R.I. Gen. Laws § 42-35-2.5: a.) Should the Ethics Commission issue a publicly-available, written decision at any time it dismisses a complaint at the Probable Cause hearing, providing the Commission’s rationale and basis for the dismissal? b.) Should the Ethics Commission continue to make public the Prosecutor’s Investigative Report after the Probable Cause Hearing, including in cases where the complaint is dismissed because there is not enough evidence to prove a violation of the Code of Ethics? Staff Attorney Gramitt provided a history of the events leading to the instant Public Workshop. He explained that, in 1987, the Commission’s complaint process was not an open and public one. He informed that a gag order prohibited complainants from discussing the complaints they filed. He further informed that, a few years later, the court held that it was unconstitutional to preclude a person from publicly discussing complaints they filed with the Commission. Staff Attorney Gramitt stated that in 1990, as a result of statutory changes by the legislature, complaints and answers thereto became public documents. He further stated that while R.I. Gen. Laws § 36-14-12(c)(3) stayed the same, § 12(c)(6) was added to provide that “[n]othing in this section shall be construed to authorize the Commission to make any investigatory records public.” Staff Attorney Gramitt informed that in 1993, the Commission adopted procedural regulations including Regulation 1006 which provides for the release of investigative reports. Staff Attorney Gramitt stated that in the 2000 Gaschen case, the Commission found that probable cause existed to believe that the respondent violated the Code of Ethics. The respondent sued the Commission to prevent the release of the investigative report. He noted that Judge Silverstein of the Superior Court ordered the redaction of all investigative findings of fact in the report before it could be released. Staff Attorney Gramitt explained that the Commission continued the practice of redacting findings of fact from investigative reports until late 2006-early 2007 when a decision was made to again release unredacted investigative reports. He stated that the practice of releasing unredacted reports has changed as a result of the 2016 Fonseca case. In the 2016 Fonseca Complaint, the Prosecutor’s Investigative Report recommended a finding of probable cause with which the Commission disagreed, and it dismissed the matter. Staff Attorney Gramitt informed that the investigative reports are work products of the Commission prosecutors; the Commission does not endorse nor change them. Staff Attorney Gramitt stated that a year after the Fonseca case was dismissed, a resident of the Town of Smithfield requested the investigative report, circulated it at a Town Council meeting, and made comments about Fonseca at that meeting. Staff Attorney Gramitt informed that Fonseca filed a complaint for declaratory judgment and injunctive relief against the Commission in Superior Court and sought damages and attorney’s fees. He stated that the case was dismissed under a settlement agreement which terms provided that the Commission would not pay damages or attorney’s fees, but it agreed not to further release the investigative report and to initiate rulemaking procedures to consider amending Regulation 1006. Staff Attorney Gramitt stated that two questions are the subject of this Public Workshop: (1) should the Commission stop releasing investigative reports because such release is unfair to respondents and/or because doing so conflicts with the statute; and (2) should the Commission issue a written decision to explain its rationale when it dismisses a case at a probable cause hearing. The first sign-in was John Marion, Executive Director of Common Cause Rhode Island (“Common Cause”). Mr. Marion had submitted a letter on behalf of Common Cause. He summarized the main points of said letter and argued that the Commission has some leeway under the statute to release investigative reports. He suggested that the Commission either follow Judge Silverstein’s decision in Gaschen and redact investigative reports going forward, or that the Commission create a new document that is not an investigative record but which contains the Commission’s rationale for finding no probable cause in a given case. Mr. Marion stated that he researched the ethics commissions in all 50 states, especially those commissions that released a record even where there was no finding of probable cause. He further stated that, in those states that produced a record, said record contained three elements: (1) the facts of the complaint and applicable law; (2) the prosecutor and respondent’s arguments, and the commission’s analysis and rationale; and (3) dismissal of the complaint. Mr. Marion urged the Commission to consider these elements in deciding how to proceed. He stated that transparency is important in order for the public to trust that the Commission’s decisions are based on facts and law and not politics. In response to Commissioner Murphy, Mr. Marion stated that Common Cause does not take a position as to whether the Commission should release or redact investigative reports. He further stated that if the Commission decides to continue its practice of releasing the reports, it should also issue written decisions. In response to Chair Cheit, Staff Attorney Gramitt stated that the Gaschen case involved many attachments to the investigative report that contained raw investigative facts that were not favorable to the respondent. In response to Commissioner Quinn, Mr. Marion stated that his research revealed two states, including Florida, that released all documents even where no probable cause is found. Chair Cheit thanked Mr. Marion for his research. The next sign-in was Peter Hewett from Bristol. He inquired as to the complaint and investigative process. Chair Cheit explained the process, including the Commission’s decision at initial determination as to whether to authorize an investigation of a complaint. Mr. Hewett expressed concern with transparency and whether politics plays into the Commission’s decisions, and with the due process rights of a respondent and the stigma associated with an ethics complaint. He expressed an interest in more protections for a respondent. He stated that if a complaint is dismissed at an adjudication, the complaint and all associated documents should remain confidential. Chair Cheit stated that if there is no analysis for the public to see, no one will trust the process. Chair Cheit commented that there are important values in favor of due process and transparency. Joanna Harris spoke next. She stated that she makes numerous requests for documents pursuant to the Access to Public Records Act (“APRA”), and this Commission is the only one where a person can get a great deal of unredacted information quickly. She further stated that it is powerful for persons in the community to know what the government is doing. She noted that most people do not have the time, money, or knowledge to access information. Ms. Harris stated that the investigative reports are a wealth of information and go beyond the facts of a certain case to reveal the Commission’s whole process and what is going on in this state. Chair Cheit commented that many times, the prosecutor will recommend no finding of probable cause. Commissioner Bennett noted that the Commission does not always agree with the prosecutor’s recommendation. Chair Cheit further stated that the investigative report is not a statement of the Commission. Ms. Harris commented that the investigative report reveals the prosecutor’s point of view and demonstrates that the Commission does not make decisions in a vacuum but considers past precedent and cases as well as the applicable law. Chair Cheit stated that there is a powerful argument for the Commission to do more than it does now and to issue written decisions. He noted that the Commission should further pursue the issue of amending its regulation and the consensus was to direct the Staff to present more than one option to the Commission at a future meeting. Staff Attorney Gramitt stated that the Commission’s options with respect to the investigative reports are: (1) to leave the language of the regulation regarding release of investigative reports; (2) to remove the language directing the release of the investigative report; (3) to specify the release of redacted versions; (4) to order no release of investigative reports; and (5) to require that the Commission issue a written decision. Commissioner Murphy noted that a sixth option was to specify a later date for the release of the investigative report. Chair Cheit asked that the Staff bring these options back to the Commission to discuss further. At 10:52 a.m., upon motion made by Commissioner Murphy and duly seconded, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________Robert A. Salk Secretary