Minutes February 5, 2019 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION February 5, 2019 The Rhode Island Ethics Commission held its 2nd meeting of 2019 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 5, 2019, 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 John D. Lynch, Jr. Arianne Corrente, Secretary Timothy Murphy M. Therese Antone* The following Commissioner(s) were not present: 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 Attorney Teresa Giusti; and Commission Investigators Steven T. Cross; Peter J. Mancini; and Gary V. Petrarca. At 9:07 a.m., the Chair opened the meeting. *Commissioner Antone arrived at 9:08 a.m. The first order of business was: Approval of minutes of the Open Session held on January 8, 2019. 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 8, 2019. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; John D. Lynch, Jr.; Timothy Murphy; and Marisa A. Quinn. ABSTENTIONS: M. Therese Antone. 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: Mary Manning-Morse, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee, seeks an advisory opinion as to what limitations, if any, the Code of Ethics places upon her (i) simultaneously serving on both the Charter Commission and the School Committee; (ii) serving on the Charter Commission, given that her husband is a member of the Hope Village Overlay District Review Committee in Scituate; and (iii) volunteering her time as a math tutor for a Scituate High School student. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Upon motionmade by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Mary Manning-Morse, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee. The next advisory opinion was that of: James H. Brady, Jr., a member of the Scituate Town Council, and a retired member of the Scituate Police Department, requests an advisory opinion regarding 1) whether he may continue to serve on Scituate Police Department’s road detail list, given his position as municipal elected official; 2) what restrictions the Code of Ethics places on him in participating in Town Council discussions and decision-making relative to matters involving the Scituate Police Department, given that he participates in its Voluntary Road Detail Program for Retirees and its private Scituate Police Pension and given that his son is a police officer in the Scituate Police Department; and 3) whether he is prohibited by the Code of Ethics from serving as Town Council President, Vice President, or President Pro Tempore. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Commissioner Bennett thanked the Petitioner for his service and advised him to be cautious and seek further assistance from the Commission if any questions arise. Commissioner Murphy stated that the guidance in the advisory opinion was vague regarding the Petitioner’s son. Commissioner Murphy further advised the Petitioner that if a line item for overtime appears in the proposed budget and he is aware that his son receives overtime, the Petitioner should seek guidance from the Commission before participating. In response to Commissioner Quinn, the Petitioner stated that following his election to the Town Council in November 2018, he was advised by Town Council President Charles Collins to seek an advisory opinion. Commissioner Bennett instructed the Petitioner to be cautious when participating in discussions regarding staffing, increasing officer positions, manning, and upward mobility. Commissioner Lynch posited a situation where the Town decides to add a lieutenant position to the Police Department and the Petitioner’s son is on the list for that position, thereby requiring the Petitioner to recuse or seek additional advice from the Commission before taking any official action. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to James H. Brady, Jr., a member of the Scituate Town Council, and a retired member of the Scituate Police Department. The next three advisory opinions were those of: Robert Coulter, a member of the Tiverton Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to pending Superior Court litigation that he and two other Town Council members individually initiated against the Town of Tiverton; Justin Katz, a member of the Tiverton Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to pending Superior Court litigation that he and two other Town Council members individually initiated against the Town of Tiverton; and Nancy L. Driggs, a member of the Tiverton Town Council, requests an advisory opinion regarding whether she may participate in the Town Council’s discussions and voting relative to pending Superior Court litigation that she and two other Town Council members individually initiated against the Town of Tiverton. Executive Director Gramitt informed that given that the facts and legal issues are substantially similar in all three advisory opinions, he will present the Commission Staff recommendation for all three at the same time. The three Petitioners were present. Petitioner Coulter informed that, at the Town Council’s January 22, 2019 meeting, the Council presented a summary of all pending litigation against the Town but that he and Council members Katz and Driggs recused. In response to Commissioner Quinn, Petitioner Driggs stated that there are seven council members. In response to Commissioner Quinn, Executive Director Gramitt explained that while the outcome of any Town Council decision may be impacted by the Petitioners’ recusals, the Council will still have a quorum with four members. He further stated that the Commission has never involved itself in outcome issues. In response to Chair Cheit, Legal Counsel DeSimone informed that although the issue is largely moot because the subject referendum has passed, the remaining litigant, Richard Rom, could argue that the item he sought to put on last year’s referendum should go on this year’s referendum. In response to Commissioner Quinn, Executive Director Gramitt stated that a possible financial benefit for the Petitioners would be reimbursement of their legal fees and costs if they prevailed. Petitioner Katz informed that they are pro se litigants. In response to Chair Cheit, Executive Director Gramitt stated that even if the Petitioners had not sought the reimbursement of legal fees, they would still be prohibited from participating in and voting on the litigation because certain putative claims, such as those requesting Rule 11 sanctions, endure through the conclusion of the litigation. In response to Commissioner Quinn, Executive Director Gramitt explained that when the Town Council reviews all litigation, the Petitioners are advised to recuse from participation regarding their litigation while it is still pending. Legal Counsel DeSimone informed that approximately every five years, after providing notice to affected parties, the Superior Court dismisses cases for lack of prosecution. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Robert Coulter, a member of the Tiverton Town Council. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Justin Katz, a member of the Tiverton Town Council. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Nancy L. Driggs, a member of the Tiverton Town Council. The next advisory opinion was that of: Francis DiGregorio, a member of the Exeter Town Council, seeks an advisory opinion as to whether the Code of Ethics prohibits his participation in discussions and decision-making regarding an ordinance involving the zoning and regulation of utility-scale solar power stations, given that the Petitioner is a party to pending litigation in which a developer of utility-scale solar power stations has intervened. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. The Petitioner expressed gratitude for the expeditious handling of this matter and for the Commission’s efforts to promote transparency and accountability in government. In response to Chair Cheit, Staff Attorney Radiches stated that the guidance in the advisory opinion applies regardless of how many drafts of the ordinance are prepared for review by the Town Council. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Lynch, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Francis DiGregorio, a member of the Exeter Town Council. The next advisory opinion was that of: Theodore J. Przybyla, Treasurer for the Town of Scituate, who is also a member of the Scituate Home Rule Charter Commission, seeks an advisory opinion as to whether the Code of Ethics prohibits from simultaneously serving in both positions. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Antone and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Theodore J. Przybyla, Treasurer for the Town of Scituate, who is also a member of the Scituate Home Rule Charter Commission. The next advisory opinion was that of: Theodore J. Przybyla, Treasurer for the Town of Scituate, seeks an advisory opinion as to whether he would be prohibited by the Code of Ethics from simultaneously serving on the Scituate Budget Committee, a municipal appointed position, given that his participation in Scituate Budget Committee discussions and decision-making regarding a proposed budget may include an increase in compensation for certain employees of the Town of Scituate, including the Town Treasurer. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Commissioner Bennett stated that he had previously served as the Chair of his town’s Budget Committee and cautioned that issues can surface and come before the Budget Committee in many different ways. He noted that a vote may not directly involve pay or compensation but still be problematic. Commissioner Bennett stated that there are too many pitfalls in this situation, and the Petitioner should decline the position. Chair Cheit informed that the law does not require the Petitioner to decline the position. Commissioner Bennett commented that it will be difficult for the Petitioner to serve in both capacities given that there are so many ways that compensation matters come before the Budget Committee. In response to Chair Cheit, Staff Attorney Radiches stated that she was not aware of the reason that the Petitioner was not present today. Chair Cheit noted that the Petitioner should be present, and Commissioner Bennett stated that he would like to ask questions of the Petitioner and apprise him of the dangers and pitfalls of holding both positions. In response to Commissioner Corrente, Staff Attorney Radiches informed that the Treasurer is an elected position. Chair Cheit advised Staff Attorney Radiches to inform the Petitioner that a vote on this matter will be continued to the next meeting at which his presence is requested, as the Commission has questions and concerns to address with him. The next advisory opinion was that of: Albert S. Gizzarelli, Jr., a member of the Smithfield Planning Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and decision-making relative to a proposed development of property owned by a friend whose son, also a friend, has contributed to the Petitioner’s political campaign for Smithfield Town Council. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Chair Cheit noted that the facts may implicate an appearance of impropriety but that is not for the Commission to decide. In response to Commissioner Corrente, Executive Director Gramitt informed that the Staff receives phone calls regarding campaign contribution issues but not often advisory opinion requests. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Albert S. Gizzarelli, Jr., a member of the Smithfield Planning Board. The final advisory opinion was that of: Erika McCormick, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee, who in her private capacity is the coordinator of a federal grant that funds her work to further the initiatives of the Scituate Prevention Partnership, of which she is a member, seeks an advisory opinion as to what limitations, if any, the Code of Ethics places upon her (i) simultaneously serving on both the Charter Commission and the School Committee; (ii) serving on the Charter Commission, given that her husband is a member of the Scituate Town Council; (iii) serving on the School Committee, given that her husband is a member of the Town Council; and (iv) participating in School Committee discussions and decision-making relative to matters involving the Scituate Prevention Partnership. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Staff Attorney Radiches stated that, at the last meeting the Petitioner’s spouse received an advisory opinion from the Commission which mirrored the instant opinion. Commissioner Bennett commented that the Petitioner needs to be mindful and vigilant of ways that her husband could be impacted by her actions. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Erika McCormick, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee. Executive Session. At 10:09 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on January 8, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 2. In re: Brian Mathieu, Complaint No. 2018-12, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. In re: Ralph A. Palumbo, Complaint No. 2018-14, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 4. In re: James C. Cournoyer, Complaint No. 2018-10, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 5. In re: Jonathan N. Savage, Complaint No. 2019-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 6. In re: Robert Coulter, Complaint No. 2019-2, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 7. In re: Justin Katz, Complaint No. 2019-3, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 8. In re: Nancy Driggs, Complaint No. 2019-4, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 9. Motion to return to Open Session. At 10:45 a.m., the Commission reconvened in Open Session. 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. Voted (5-0) to approve the minutes of the Executive Session held on January 8, 2019. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; John D. Lynch, Jr.; and Marisa A. Quinn. ABSTENTIONS: M. Therese Antone. Timothy Murphy was not present for the vote.] 2. In re: Brian Mathieu, Complaint No. 2018-12, was continued to the next Commission meeting. 3. Unanimously voted (7-0) in the matter of In re: Ralph A. Palumbo, Complaint No. 2018-14, to approve an Informal Resolution and Settlement and impose a civil penalty of $100. 4. Unanimously voted (7-0) in the matter of In re: James C. Cournoyer, Complaint No. 2018-10, to enlarge time for investigation for sixty days. 5. Unanimously voted (7-0) in the matter of In re: Jonathan N. Savage, Complaint No. 2019-1, to initially determine that the facts alleged in the Complaint, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and to authorize an investigation. 6. Unanimously voted (7-0) in the matter of In re: Robert Coulter, Complaint No. 2019-2, to initially determine that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics and to dismiss the Complaint. 7. Unanimously voted (7-0) in the matter of In re: Justin Katz, Complaint No. 2019-3, to initially determine that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics and to dismiss the Complaint. 8. Unanimously voted (7-0) in the matter of In re: Nancy Driggs, Complaint No. 2019-4, to initially determine that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics and to dismiss the Complaint. The next order of business was: Motion to seal minutes of Executive Session held on February 5, 2019. Upon motion made by Commissioner Antone and duly seconded by Commissioner Lynch, it was unanimously VOTED: To seal the minutes of the Executive Session held on February 5, 2019. The next order of business was: Director’s Report: Status report and updates. Executive Director Gramitt expressed gratitude to the Commission for its cooperation with a long agenda. He explained that this has been one of the busiest times for the Commission regarding advisory opinion requests and complaints. He informed that a full adjudication has been noticed in In re: Francis X. Flaherty for February 26, 2019, and that the attendance of all Commissioners is appreciated. a.) Complaints and investigations There are 14 complaints pending, which include five non-filing complaints. b.) Advisory opinions There are 13 advisory opinions pending. c.) Access to Public Records Act requests since last meeting Seventeen APRA requests were received since the last meeting, all of which were granted within one business day. The breakdown was: four requests related to financial disclosure; eight requests related to advisory opinions; and five requests related to complaint materials. In response to Commissioner Murphy, Executive Director Gramitt informed that each Staff member logs phone calls that need to be memorialized. In further response to Commissioner Murphy, Executive Director Gramitt stated that he will gather the statistics relating to calls concerning advisory opinions and complaints that do not come to fruition and provide updates to the Commission. In response to Commissioner Corrente, Executive Director Gramitt stated that he will provide the Commission with a public education and outreach update in the spring. The final order of business was: New Business. Chair Cheit announced that, after serving for more than 20 years, Commissioner Murray has resigned. Chair Cheit stated that Commissioner Murray is currently in Florida and will return in May, at which time the Commission will recognize him for his extraordinary service on the Commission. Chair Cheit noted that Commissioner Murray’s departure increases the burden to have quorums at Commission meetings until his replacement is appointed. At 10:54 a.m., upon motion made by Commissioner Quinn and duly seconded by Commissioner Lynch, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Arianne Corrente Secretary