Minutes February 11, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION February 11, 2020 The Rhode Island Ethics Commission held its 3rd 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, February 11, 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 Arianne Corrente, Vice Chair* Robert A. Salk** Kyle P. Palumbo, Secretary Emili B. Vaziri J. Douglas Bennett The following Commissioner(s) were not present: M. Therese Antone. 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 9:05 a.m., the Chairopened the meeting. The first order of business was: Approval of minutes of the Open Session held on January 28, 2020. Commissioner Palumbo noted a correction to be made to item number five under “Report on Actions Taken in Executive Session” in the January 28, 2020 draft minutes to reflect the actual motion he had made, which was to allow the Respondents’ attorneys to be heard on their objection to not being allowed in Executive Session during the hearing on a non-party witness’s Motion to Quash. Executive Director Gramitt informed that item number five as drafted reflected how the Chair publicly reported Commissioner Palumbo’s motion. Commissioner Palumbo suggested the correction to item number five be made with a footnote explaining how the Chair reported the motion. Chair Quinn noted that the staff had already corrected the January 28, 2020 draft Open Session minutes to reflect that Attorney Radiches presented the advisory opinion issued to the New Shoreham Town Council. Upon motion made by Commissioner Palumbo and duly seconded by Commissioner Murphy, it was unanimously VOTED: To amend the minutes of the Open Session held on January 28, 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 28, 2020, as amended. AYES: Marisa A. Quinn; Timothy Murphy; Kyle P. Palumbo; and Emili B. Vaziri. ABSTENTIONS: 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: Robert A. Moreau, a member of the Town of Foster Economic Development Advisory Committee, who is also a member of the Town of Foster Planning Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions. * Commissioner Corrente arrived at 9:09 a.m. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Vaziri, it was VOTED: To issue an advisory opinion, attached hereto, to Robert A. Moreau, a member of the Town of Foster Economic Development Advisory Committee, who is also a member of the Town of Foster Planning Board. AYES: Marisa A. Quinn; J. Douglas Bennett; Timothy Murphy; Kyle P. Palumbo; and Emili B. Vaziri. ABSTENTIONS: Arianne Corrente. The next advisory opinion was that of: Rebecca Boss, the former Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her new private employment with CODAC Behavioral Healthcare, Inc., a provider of outpatient services for opioid use disorder, other substance abuse disorders, and concurrent behavioral health challenges. ** Commissioner Salk arrived at 9:15 a.m. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Rebecca Boss, the former Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals. The next advisory opinion was that of: Gordon Rogers, a member of the Rhode Island Senate, requests an advisory opinion regarding whether the Code of Ethics prohibits him from submitting a bill in the Rhode Island Senate which would allow volunteer firefighters who meet certain requirements to utilize the State’s vehicle bid list to purchase discounted personal vehicles, given that the Petitioner is a volunteer firefighter. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Commissioner Murphy expressed concern with allowing a person to recuse when he created the conflict in the first instance by introducing legislation. Commissioner Murphy noted that prior advisory opinions addressed situations in which a person was presented with a conflict and recused whereas, here, the Petitioner would be creating the conflict by introducing the bill. The Petitioner addressed the Commission and explained that there is a shortage of volunteer firefighters and the challenge has been to find incentives to draw in more volunteers. He further explained that he was asked to introduce the bill. Commissioner Murphy questioned whether the Petitioner introducing the subject bill creates an appearance of impropriety under the R.I. Constitution. Legal Counsel DeSimone informed that § 7(a) defines conflicts of interest and § 7(b) explains the class exception. He explained that there is no conflict if a person is a member of a class under § 7(b). Commissioner Murphy cited to § 6 and argued that introducing a bill is not the type of official action contemplated by that section. The Petitioner stated that it is common for members of the General Assembly to put forward legislation in their respective wheelhouses because they have knowledge and expertise in those areas. He pointed out that if the class exception does not apply, then there is no recourse for officials to press legislation in their wheelhouses. In response to Chair Quinn, Executive Director Gramitt stated that the advisory opinion issued to Representative Joseph Trillo may be instructive. He explained that core legislative actions such as introducing bills, debating, and voting, can create possible conflicts under § 5(a), and § 7(a) modifies or defines § 5(a). He stated that § 7(b) explains when a conflict does not exist. He stated that § 6 is not treated as a substantive section and applies to the form that the official completes upon recusal from a matter. Executive Director Gramitt informed that an appearance of impropriety is not covered under these sections of the Code but understood Commissioner Murphy’s point that an appearance issue could exist here. The Petitioner stated that he would not benefit from the proposed legislation because he has not completed the 80-hour requirement, but he noted that the group of those who have completed the requirement is large. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Palumbo, it was VOTED: To issue an advisory opinion, attached hereto, to Gordon Rogers, a member of the Rhode Island Senate. AYES: Marisa A. Quinn; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; Robert A. Salk; and Emili B. Vaziri. NOES: Timothy Murphy. The final advisory opinion was that of: March P. Welch, Legal Counsel to the North Providence Town Council, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients in his private law practice before the Rhode Island Superior and District Courts, and before the Rhode Island Traffic Tribunal, in criminal and traffic matters involving the North Providence Police Department. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. In response to Commissioner Vaziri, Staff Attorney Radiches stated that the Petitioner is not part of the Solicitor’s office and is solely legal counsel to the Town Council. Commissioner Bennett stated that he could foresee potential conflicts involving lawsuits with the Town and would like the Petitioner to appear before the Commission to answer some questions. In response to Commissioner Bennett, Legal Counsel DeSimone stated that the Petitioner’s request is limited to representing private clients charged by the Police Department with criminal misdemeanors and traffic violations and not civil allegations. Discussion ensued regarding amending the language of the advisory opinion to narrow its application to criminal matters only. Chair Quinn stated that there were enough questions and concerns raised by the Commissioners to warrant having the Petitioner appear. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Salk, it was unanimously VOTED: To defer the discussion and vote on this advisory opinion to March 3, 2020, when the Petitioner can be present. The next order of business was: Advisory Opinion Procedures: Discussion of current procedures for consideration and issuance of advisory opinions, and potential identification of preliminary proposals for changes to such procedures. Executive Director Gramitt first noted that the advisory opinion to Representative Trillo that he mentioned earlier during the presentation of Senator Rogers’s advisory opinion involved Representative Trillo’s proposal of legislation. Executive Director Gramitt stated that copies of the advisory opinion can be distributed during the break for Executive Session. Executive Director Gramitt explained that the agenda item regarding Advisory Opinion Procedures was prompted by Commissioner Murphy’s inquiry at a prior meeting as to whether there might be a way to expedite the presentation of advisory opinions to the Commission. Executive Director Gramitt explained the current process, which has been in effect since the 1990s, and the Commission’s statutory and constitutional authority to issue advisory opinions. He further explained that advisory opinions are based on the petitioners’ representations, and the assigned attorneys conduct legal research and strive to stay consistent with past precedent. Executive Director Gramitt reviews the attorneys’ drafts and then decides whether the opinion is formal or “fast-track.” Executive Director Gramitt explained that in making that decision, he reviews whether the question presented is straightforward and, if so, the petitioner is given safe harbor protection as to the advice in the draft until it is presented to the Commission for ratification. He further explained that, if the Commission does not approve the opinion as drafted, the petitioner can no longer rely on safe harbor protection. Executive Director Gramitt stated that safe harbor is not provided for opinions involving accepting employment or where real harm will inure to the petitioner if the Commission rejects the opinion. Executive Director Gramitt informed that Commissioner Murphy raised the notion of a consent agenda for opinions involving simple issues obviating the need for an oral presentation before voting. Discussion ensued. In response to Commissioner Corrente, Commissioner Murphy stated that the opinions on the consent agenda could appear in the aggregate and the Commission could take a single vote on the bundle. He further stated that if any Commissioner wished to engage in discussion regarding a given draft, he/she could request to remove it from the consent agenda for discussion. In further response to Commissioner Corrente, Commissioner Murphy stated that petitioners could still be invited to attend but should be advised that their advisory opinions may not be presented. Executive Director Gramitt informed that if the Commission is inclined to pursue this matter, he can come back with a proposal that includes how a consent agenda might work. Further discussion ensued. Chair Quinn commented that she prefers to hear the presentations, the comments from the petitioners, and the staff’s recommendations. Commissioner Palumbo noted that it would be helpful to know how many fast-track or safe harbor opinions were not approved by the Commission. Executive Director Gramitt stated that he could gather that information. Commissioner Corrente expressed concern over transparency if fast-track opinions are bundled on a consent agenda and petitioners are advised to attend but then do not have an opportunity to speak. Chair Quinn stated that while the Commission should be efficient with its time, it should not short-change transparency and should hear from the public. Executive Director Gramitt stated that a discussion and vote on advisory opinion procedures could be noticed on a future agenda. Executive Session. At 10:16 a.m., uponmotion made by Commissioner Bennett 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 January 28, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Matthew Buchanan, Complaint No. NF2019-3, Pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. Chair Quinn noted that In re: Gayle Corrigan , Complaint Nos. 2017-11 and 2018-5, will not be heard. 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 10:27 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 (6-0) to approve the minutes of the Executive Session held on January 28, 2020. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; Arianne Corrente; Timothy Murphy; Kyle P. Palumbo; Robert A. Salk; and Emili B. Vaziri. ABSTENTIONS: J. Douglas Bennett.] 2. Voted (6-1) in the matter of In re: Matthew Buchanan, Complaint No. NF2019-3, that probable cause exists to believe that the Respondent violated R.I. Gen. Laws § 36-14-16 by failing to timely file a 2018 Financial Disclosure Statement with the Rhode Island Ethics Commission. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; J. Douglas Bennett; Arianne Corrente; Timothy Murphy; Kyle P. Palumbo; and Robert A. Salk. NOES: Emili B. Vaziri.] 3. Received a 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 February 11, 2020. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Bennett, it was unanimously VOTED: To seal the minutes of the Executive Session held on February 11, 2020. The next order of business was: Complaint Procedures: Discussion of the Ethics Commission’s procedures and history relating to the transparency of, and public access to, ethics complaints. Executive Director Gramitt explained how and when the complaint process evolved from a closed to a transparent process as it currently is. He discussed the memorandum that he prepared for the Commission in their binders relating to the transition to transparency. Commissioner Salk inquired as to how many complaints are dismissed at initial determination without any investigation. Executive Director Gramitt estimated that approximately 5% or less do not pass initial determination. He explained that the staff has an internal process to filter submitted complaints that do not proceed to initial determination. In response to Commissioner Murphy, Executive Director Gramitt informed that an initial determination proceeding is held in Executive Session because the complaint is not technically a complaint until the Commission determines it as such. He further informed that a probable cause hearing is in Executive Session because the investigative facts are confidential until a finding of probable cause has been made by the Commission. He stated that the evidence and raw investigative material remain confidential until brought out at a public adjudication. Reporter’s Note: Commissioner Bennett stepped out of the hearing room at 10:36 a.m. and returned at 10:39 a.m.] In response to Commissioner Murphy, Executive Director Gramitt stated that if the Commission makes a finding of no probable cause and a case is dismissed, the Investigative Report becomes public at that time. In further response to Commissioner Murphy, Executive Director Gramitt explained that settlement agreements may also include references to investigative data. In response to Commissioner Corrente, Executive Director Gramitt stated that the memorandum that he prepared may be posted on the Commission’s website. In response to Commissioner Salk, Executive Director Gramitt explained that the statute requires that the Prosecution conclude an investigation within 180 days of the filing of a complaint, which cannot be waived, subject to two maximum extensions of time of 60 days each. He stated that the average time for investigation is 180 days. In response to Commissioner Salk, Executive Director Gramitt explained that it is a violation of the Code of Ethics to file a frivolous complaint and, furthermore, a person who does so can be required to pay up to $5,000 in attorneys’ fees. He further stated that the Commission investigators meet with complainants to explain the implications of filing a complaint under oath. Commissioner Palumbo proposed a subcommittee to conduct research as to what other states and state agencies are doing. Executive Director Gramitt stated that subcommittees are subject to the Open Meetings Act and the research would show that other states are not as open and transparent as the Rhode Island Ethics Commission. He explained that the way the Commission proceeds with initial determination and probable cause hearings is governed by statute, which the Commission cannot change. He further explained that what the Commission discloses to the public and how it does so is largely determined by regulations which it can amend. Commissioner Salk noted that the Commission is not decreasing transparency but wants to be balanced and fair as to when transparency starts. Chair Quinn expressed concern over establishing a subcommittee and taking this issue out of the purview of the full Commission and not giving the public a chance to comment. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was VOTED: To maintain the current procedures with no further discussion at this time. AYES: Marisa A. Quinn; Arianne Corrente; and Timothy Murphy. NOES: J. Douglas Bennett; Kyle P. Palumbo; Robert A. Salk; and Emili B. Vaziri. The motion failed. Legal Counsel DeSimone informed that this matter was not on the agenda for a vote at this meeting. Executive Director Gramitt stated that the matter was noticed for discussion only and the vote is a nullity. He informed that the vote could be taken again at a future meeting, if desired, when the matter is properly noticed. The next order of business was: Director’s Report: Status report and updates a.) Complaints and investigations There are nine complaints pending, including two non-filing complaints. b.) Advisory opinions There are seven advisory opinions pending. c.) Access to Public Records Act requests since last meeting There was a small number of APRA requests received since the last meeting, all of which were granted within one business day. At 11:02 a.m., upon motion made by Commissioner Bennett and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adjourn. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary