Minutes February 27, 2018 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION February 27, 2018 The Rhode Island Ethics Commission held its 4th 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 27, 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 J. Douglas Bennett Marisa A. Quinn, Vice Chair Timothy Murphy Robert A. Salk, Secretary* James V. Murray The following Commissioner(s) were not present: M. Therese Antone; Arianne Corrente; 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 February 6, 2018. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To approve the minutes of the Open Session held on February 6, 2018. 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: Lonzie Doggett, an outreach worker at the Providence Housing Authority, requests an advisory opinion regarding whether the Code of Ethics permits her to simultaneously serve as a member of the Providence Housing Authority Board of Commissioners, a municipal appointed position. *Commissioner Salk arrived at 9:06 a.m. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present along with Mark Oulette, Esq., counsel for the Providence Housing Authority. The Petitioner asked whether she was prohibited from applying for another position with the Housing Authority if one becomes available. Attorney Oulette advised the Petitioner that she may not seek other employment with the Housing Authority. Staff Attorney Popova Papa informed that if the Petitioner applies for a full-time position, it would require approval by her own Board and trigger the prohibitions under Commission Regulation 36-14-5006. In response to Commissioner Murphy, Staff Attorney Popova Papa stated that the advisory opinion is narrowly drafted, and the Petitioner has been advised to seek out further guidance from the Commission if future issues arise. Upon motionmade by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Lonzie Doggett, an outreach worker at the Providence Housing Authority. The next advisory opinion was that of: Richard A. Bernardo, P.E., a former Manager of In House Design/Immediate Needs at the Rhode Island Department of Transportation, requests an advisory opinion regarding the application of the “revolving door” provisions of the Code of Ethics, given that his new private employer will submit his resume to the Department of Transportation as part of its Statement of Qualifications. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Commissioner Salk expressed concern that the Petitioner’s employer is using his qualifications to pre-qualify, but the Petitioner is unable to do the work under the contract for which they are seeking qualification until December 2018. Staff Attorney Popova Papa stated that the pre-qualification status lasts between three and five years and the Department of Transportation’s solicitation of Statements of Qualifications is expected to begin in the spring. Commissioner Quinn stated that the issue is whether the Petitioner can represent himself before his own agency and Commission Regulation 36-14-5016 prohibits him from doing so. Chair Cheit noted that it is unusual that the Petitioner’s employer is required to submit his resume so long before the work would begin, but stated that this was the Department of Transportation’s procedure. In response to Commissioner Murphy, the Petitioner informed that his employer’s submission of its Statement of Qualifications is part of a renewal process. The Petitioner also informed that there are approximately 850 engineers like himself employed by HAKS Engineers, his employer. Uponmotion made by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard A. Bernardo, P.E., a former Manager of In House Design/Immediate Needs at the Rhode Island Department of Transportation. The next advisory opinion was that of: Anthony DeSisto, the Solicitor for the Town of Tiverton, requests an advisory opinion regarding whether he may serve as legal counsel to the Tiverton Planning Board relative to a particular land development project, given that in his private capacity as an attorney the Petitioner previously represented a client in the defense of a lawsuit brought by the developer. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was not present. Uponmotion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Anthony DeSisto, the Solicitor for the Town of Tiverton. The next advisory opinion was that of: Carol Guimond, a member of the Tiverton Planning Board, who in her private capacity is a real estate agent affiliated with Century 21 Topsail Realty in Tiverton, requests an advisory opinion regarding whether she may participate in the Planning Board’s consideration of land development projects brought by a developer who is working on the project with another real estate agent at Century 21 Topsail Realty. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was not present. In response to Commissioner Murphy, Staff Attorney Gramitt stated that the Petitioner and Ms. Plant are fellow employees of the same real estate agency but they are not business associates of each other unless they work together on the same listings to make a sale happen and share commissions. In response to Commissioner Bennett, Staff Attorney Gramitt stated that the Petitioner concedes that it is reasonably foreseeable that she and Ms. Plant will work together on real estate listings on which one of them will receive a financial benefit. Upon motion made by Commissioner Murray and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Carol Guimond, a member of the Tiverton Planning Board. The final advisory opinion was that of: Carol Guimond, a member of the Tiverton Planning Board, who in her private capacity is a real estate agent affiliated with Century 21 Topsail Realty in Tiverton, requests an advisory opinion regarding whether she may participate in the Planning Board’s consideration of a land development project brought by another real estate agent at Century 21 Topsail Realty in Tiverton. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was not present. He further noted that the analysis in this advisory opinion is the same as the prior one for this Petitioner. In response to Commissioner Murphy and Chair Cheit, Staff Attorney Gramitt stated that this analysis and opinion are based on the Petitioner’s current relationship with another agent in her office and does not relate to other agents in the town working on this development with whom she does not have an ongoing business associate relationship. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Carol Guimond, a member of the Tiverton Planning Board. The next order of business was: Director’s Report. Executive Director Willever reported that there were nine (9) complaints, including one (1) non-filing complaint, and sixteen (16) advisory opinions pending. He stated that twelve (12) APRA requests were received since the last meeting, all of which were granted within one business day. Executive Session. At 9:32 a.m., uponmotion made and duly seconded, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on February 6, 2018, pursuant to R.I. Gen. Laws § 42-46-5(2) and (4). 2. In re: Carlos Monzon, Complaint No. NF2017-4, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. In re: Luis Aponte, Complaint No. 2016-13, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 4. In re: Gina Raimondo, Complaint No. 2018-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 5. In re: Arthur Capaldi, Complaint No. 2018-2, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 6. Motion to return to Open Session. The Commission reconvened in Open Session at 10:13 a.m. The next order of business was: Motion to seal minutes of Executive Session held on February 27, 2018. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To seal the minutes of the Executive Session held on February 27, 2018. 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 (6-0) to approve the minutes of the Executive Session held on February 6, 2018. 2. Unanimously voted (6-0) in the matter of In re: Carlos Monzon, Complaint No. NF2017-4, that probable cause exists to believe that the Respondent violated the Code of Ethics as alleged in the Complaint. 3. Unanimously voted (6-0) in the matter of In re: Luis Aponte, Complaint No. 2016-13, to approve an Informal Resolution and Settlement and impose a civil penalty of $1,500. 4. In the matter of In re: Gina Raimondo, Complaint No. 2018-1, voted (5-1) that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics. Therefore, the Complaint was dismissed. [Reporter’s Note: The vote was as follows: AYES: Robert A. Salk; Timothy Murphy; James V. Murray; Marisa A. Quinn; and Ross Cheit. NOES: J. Douglas Bennett.] Chair Cheit stated that the Initial Determination Report, which sets forth the legal reasoning based on a past decision involving Governor Carcieri, will be public following the meeting. 5. Unanimously voted (6-0) to initially determine that the facts alleged in In re: Arthur Capaldi, Complaint No. 2018-2, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and authorized an investigation. The next order of business was: In light of comments received at the Public Workshop held on February 6, 2018, the Ethics Commission will review and discuss potential amendments to Regulation 1006 that would require the Commission to issue a written decision explaining the basis for any dismissal following a probable cause hearing, and that would change the Commission’s current practice of releasing the complete investigative report following a probable cause hearing. Any proposed amendments will be voted on at a future meeting, following advertisement and further opportunity for public comment. Staff Attorney Gramitt informed that at the conclusion of the Public Workshop on February 6, 2018, the Commission instructed its Staff to draft several regulatory options for further consideration. The Staff drafted several proposed amendments for the Commission to consider and choose which, if any, to submit as part of the rule-making process. He further informed that following the Commission’s selections, the Staff will provide 30 days’ notice for public comments on the options that the Commission selects. At a future meeting, the Commission will decide whether to adopt any of the selected options or not. Staff Attorney Gramitt summarized the six (6) options and stated that the Commission may select any, some, or none to submit for rule-making. He explained that Option A proposes no changes to Regulation 1006; Option B proposes removal of language in Regulation 1006 that requires the Investigative Report to become public; Option C proposes the same as Option B but adds clear language that the Investigative Report remains confidential; Option D proposes to allow the release of the Investigative Report but in a redacted form, deleting references to investigatory facts or records, similar to Judge Silverstein’s ruling in the Gaschen case; Option E proposes the release of the Investigative Report only after an adjudication rather than after a probable cause hearing; and Option F could be included with any of the above options and proposes the requirement of a written decision any time a complaint is dismissed at a probable cause hearing. In response to Chair Cheit, Staff Attorney Gramitt stated that Option B could conceivably be interpreted to permit the release of the Investigative Report at the Commission’s discretion. Commissioner Murphy stated that Option E did not fit in well when there is a finding of no probable cause. He queried whether the rule-making agenda should have two topics, one for options when there is a finding of probable cause and one when there is no such finding. Chair Cheit stated that he would like to see Option F added to the rule-making agenda. In response to Commissioner Quinn, Staff Attorney Gramitt stated there is a risk with Option E and releasing the Investigative Report at any point, even after an adjudication. In response to Commissioner Quinn, Staff Attorney Gramitt stated that if the Commission accepts the statute’s mandate that the Investigative Report cannot be released, then Option C is most closely aligned with the statute as it requires the Report to always remain confidential. Chair Cheit inquired whether Options B, C, and F were sufficient to cover the issues at stake. Commissioner Bennett agreed that these options presented the broadest possible range for discussion. Staff Attorney Gramitt explained that the Staff could prepare Options B, C, and F to be filed with the Secretary of State’s Office as a public posting with 30 days’ notice for the public to submit comments. In response to Commissioner Bennett, Staff Attorney Gramitt stated that Option A, which proposes no changes, is always available and no notice would have to be provided to consider it. The final order of business was: New Business. There was no new business. At 10:30 a.m., upon motion made by Commissioner Murphy and duly seconded, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Robert A. Salk Secretary