Minutes March 16, 2021

MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION

March 16, 2021

The Rhode Island Ethics Commission remotely conducted its 6^th meeting of 2021 in Zoom webinar format at 9:00 a.m. on Tuesday, March 16, 2021, pursuant to the notice published at the Commission offices, 40 Fountain Street, Providence, Rhode Island, and electronically with the Rhode Island Secretary of State.[1]

The following Commissioners were present:

Marisa A. Quinn, Chair J. Douglas Bennett

Arianne Corrente, Vice Chair Timothy Murphy

Kyle P. Palumbo, Secretary

The following Commissioners were not present: M. Therese Antone and 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 Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross, Peter J. Mancini, and Gary V. Petrarca.

At 9:03 a.m., the Chairopened the meeting.

The first order of business was:

Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues.

Executive Director Gramitt stated that the Commission has been operating pursuant to former Governor Raimondo’s Executive Order 20-46 which has been extended to allow public bodies to conduct remote meetings during the COVID-19 pandemic. He informed that the Commission will consider in Open Session the advisory opinions noticed for today and will then convene briefly in Executive Session. Executive Director Gramitt explained that the Commission will return to this Open Session to provide a live report on all actions taken in Executive Session. He stated that copies of today’s agenda and draft advisory opinions are accessible on the Commission’s website under the link for Meeting Materials, and a written report of all actions taken in Executive Session will be published and available on the Commission’s website after the meeting ends or may be requested via email at ethics.email@ethics.ri.gov.

The next order of business was:

Approval of minutes of the Open Session held on March 2, 2021.

Commissioner Palumbo requested clarification of the minutes relating to the advisory opinion for The Honorable Gayle Goldin and whether her spouse currently represents the restaurant owner on a different restaurant. Commissioner Murphy stated that, based upon his recollection, the minutes accurately reflect the Petitioner’s representation. In response to Commissioner Palumbo, Executive Director Gramitt stated that he would confer with Staff Attorney Popova Papa, who drafted the advisory opinion, and report back to the Commission shortly.

The next order of business was:

Director’s Report: Status report and updates.

Executive Director Gramitt noted that there are only five Commissioners present for today’s meeting. He explained that five affirmative votes are needed for the advisory opinions to issue.

a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing

No updates.

b.) Complaints and investigations pending

There are five complaints pending. Executive Director Gramitt explained that, although the adjudication of the two Corrigan Complaints was completed on March 12, 2021, these matters will remain open until the Commission issues a decision and order, which is currently being drafted by Legal Counsel DeSimone, and the appeals period expires.

c.) Advisory opinions pending

There are 22 advisory opinions pending, with 10 noticed on today’s meeting agenda. Executive Director Gramitt stated that the staff gives attention to advisory opinion requests that are time-sensitive and warrant expediency or safe-harbor protection.

d.) Access to Public Records Act requests since last meeting

There were six APRA requests received since the last meeting, all of which were granted within one business day. Executive Director Gramitt informed that two of the requests related to complaints, two related to advisory opinions, one related to a recusal, and one related to financial disclosure.

e.) Financial Disclosure: Update on upcoming 2020 filing period

Executive Director Gramitt also informed that over 4,000 financial disclosure forms and instructions will be mailed out on Monday, March 22, 2021, and the deadline for filing is April 30, 2021.

f.) Legislative Update: A review of, and possible discussion and vote on whether to take a position on, pending and anticipated legislation including

2021 H 5891 relative to virtual public meetings;
2021 H 6009 relative to creating a state redistricting committee; and
2021 H 6086 relative to amending the Code of Ethics.

Executive Director Gramitt explained that these new bills, if passed, may impact the Code of Ethics and/or Ethics Commission and how it conducts its business. He stated that copies of the bills are in the Commissioner’s packets.

2021 H 5891 relative to virtual public meetings

This bill was introduced by Representative Alex D. Marszalkowski and proposes to codify the Governor’s executive orders relating to virtual meetings and add a sunset clause for 2023 if not renewed. Executive Director Gramitt informed that, after confirming with Chair Quinn, he submitted written testimony to the House Committee for its hearing last week. He further informed that the bill was not well-received in committee because it would require a virtual component for all public meetings prospectively, including traditional in-person meetings. In response to Commissioner Bennett, Executive Director Gramitt stated that he would provide the Commissioners with a copy of his letter in which he represented that the Commission’s virtual meetings have resulted in: (1) increased public attendance; (2) greater participation by petitioners requesting advisory opinions, especially those located on Block Island; and (3) increased attendance among the Commissioners, who can participate from any location.

2021 H 6009 relative to creating a state redistricting committee

This bill was introduced by Representatives Newberry, Place, Filippi, Knight, and Cortvriend and relates to the creation of a seven-member redistricting committee, three of which members would be appointed by the Ethics Commission. Executive Director Gramitt stated that if the bill seems likely to pass, he will return to ask the Commissioners if they wish to take a position on the bill. Commissioner Murphy noted that the proposal raises constitutional issues and, if the bill moves forward, the Commission should look carefully at expanding the scope of its duties and responsibilities.

2021 H 6086 relative to amending the Code of Ethics

This bill was introduced by Representatives Morgan and Nardone and proposes to amend the Code of Ethics by creating another subsection, (p), under § 36-14-5 to require a legislator’s recusal when his/her employer seeks approval of legislation that would affect the employer in any way, not just financially. Executive Director Gramitt stated that the impact of such legislation would be broad-based and affect legislators working for non-profit entities, universities, manufacturers, hospitals, banks, unions etc. He represented that he will continue to monitor the bill’s progression.

The next order of business was that of:

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 opinionwas that of:

The Honorable Mary Ann Shallcross Smith, a legislator serving as a member of the Rhode Island House of Representatives, requests an advisory opinion regarding whether she may participate in the General Assembly’s discussions and vote on legislation that would eliminate the cost of obtaining a criminal-records check required for employment with child care providers, given that the Petitioner owns and/or manages a number of child care centers in Rhode Island and voluntarily reimburses the applicants she hires for the cost of obtaining a criminal-records check.

Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Staff Attorney Popova Papa explained that the Petitioner’s request originally contained very general inquiries; however, upon subsequent discussion with Staff Attorney Popova Papa, the Petitioner requested guidance relative to a specific bill, which is the subject of today’s draft advisory opinion. Staff Attorney Popova Papa noted that she expects to present another advisory opinion addressing the Petitioner’s general inquiries at the Commission’s next meeting. In response to Commissioner Bennett, Staff Attorney Popova Papa explained that the indirect financial impact here would be upon child-care providers who reimburse the applicants they hire for the cost of obtaining a required background check. She further explained that even if the impact on the child-care providers were direct, the class exception would likely apply as the impact would be the same on all similarly situated child-care providers. In response to Chair Quinn, the Petitioner stated that there are, on average, two to three applicants per week. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to The Honorable Mary Ann Shallcross Smith, a legislator serving as a member of the Rhode Island House of Representatives.

The next advisory opinion was that of:

Charles B. Allott, Esq., a member of the Newport Zoning Board of Review, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing oneself before one’s own board, for purposes of seeking a dimensional variance to construct a storage shed at his personal residence.

Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Bennett, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Charles B. Allott, Esq., a member of the Newport Zoning Board of Review.

The next advisory opinion was that of:

Jason J. Rainone, a member of the Town of Warren Zoning Board of Review, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing oneself before one’s own board, in order to seek review and approval of proposed renovations to his primary residence and/or appeal a decision, if necessary, by the Warren Voluntary Historic District Commission relative to such renovations.

Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Murphy, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Jason J. Rainone, a member of the Town of Warren Zoning Board of Review.

The next advisory opinion was that of:

Caswell Cooke, Jr., a member of the Westerly Town Council, requests an advisory opinion regarding whether the Town Council may discuss and vote on the renewal of an existing lease agreement with the Misquamicut Business Association (“MBA”), given that the Petitioner is employed in his private capacity by the MBA as its Executive Director.

VOTED: To issue an advisory opinion, attached hereto, to Caswell Cooke, Jr., a member of the Westerly Town Council.

The next advisory opinion was that of:

William J. Conley, Jr., Esq., a former legislator who served as a member of the Rhode Island Senate, requests an advisory opinion regarding whether he may, prior to the expiration of one year after leaving legislative office, provide legal services to the Rhode Island Senate Committee on Education in a purely voluntary capacity with no compensation.

Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Commissioner Palumbo, the Petitioner stated his understanding that such types of contracts are usually established at a fixed rate and run from the beginning of the legislative session to its conclusion, but that he would not have a contract since he would be provided his services pro bono. In response to Commissioner Murphy, the Petitioner estimated that he could spend an average of 10 hours per week providing legal services to the Senate Committee on Education, with significantly more time spent during the concluding weeks of the session. In further response, the Petitioner indicated that it could total a couple hundred hours or more. Commissioner Murphy expressed concern over the fact that the hours that the Petitioner will spend providing volunteer work are hours that might have been available to someone else to derive income. Commissioner Murphy noted that part of the intent behind the revolving-door provisions of the Code of Ethics is to prevent someone on the inside from having access to opportunities that someone on the outside will not have. In further response to Commissioner Murphy, the Petitioner stated that his firm cultivates a culture of public service and has a history of providing pro bono work in the area of education law. He explained that his focus is on utilizing the skillset of his staff to accomplish good in this area and that his volunteer work is not a business opportunity. The Petitioner also explained that he is attending a graduate program in Leadership at Roger Williams University, and this pro bono work is consistent with the ethos of that program.

In response to Commissioners Palumbo and Bennett, Staff Attorney Popova Papa explained that had the Petitioner waited until the one-year period had passed, he would have been permitted to accept the position with compensation. She expounded by adding that the Petitioner is prohibited from accepting compensation because he is accepting the position during the one-year period and may not accept compensation even after the one-year period ends. The Petitioner stated that he understands that if he were to continue to provide such services after the one-year period expires it must be on a pro bono basis. He represented that he is not interested in receiving compensation for this position next year, assuming he would even be able to continue to do it Upon motion made by Commissioner Corrente and duly seconded by Commissioner Palumbo, it was

VOTED: To issue an advisory opinion, attached hereto, to William J. Conley, Jr., Esq., a former legislator who served as a member of the Rhode Island Senate.

AYES: Marisa A. Quinn; J. Douglas Bennett; Arianne Corrente; and Kyle P. Palumbo.

NOES: Timothy Murphy.

The motion did not carry, and the advisory opinion did not issue. Executive Director Gramitt informed that five affirmative votes are required for an advisory opinion to issue and the draft opinion will be rendered a nullity. In response to Chair Quinn, Executive Director Gramitt stated that the Commission may permit the Petitioner to return for reconsideration when the Commission has a full complement. With the Commission’s approval by consensus, the Petitioner agreed to return at the Commission’s next meeting.

The next advisory opinion was that of:

Marisa Desautel, an attorney in private practice who represents the City of Newport as special counsel in an environmental litigation matter, requests an advisory opinion regarding whether the Code of Ethics prohibits her from appearing before the Newport Planning Board and/or the Newport Zoning Board on behalf of a client who seeks to retain the Petitioner as an environmental expert witness to testify in a land use application matter.

Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Chair Quinn, Staff Attorney Radiches stated that the Petitioner is not bound by the Code of Ethics under these facts because she is not an appointed or elected official nor a public employee. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Murphy, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Marisa Desautel, an attorney in private practice who represents the City of Newport as special counsel in an environmental litigation matter.

The next advisory opinion was that of:

James Grundy, the Chairman of the North Kingstown Planning Commission, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing oneself before one’s own board, for purposes of requesting a zone change for a lot owned by the Petitioner’s construction business that would allow road access to an abutting lot owned by the Petitioner’s brother, which the Petitioner and his brother then plan to develop in order to build commercial units to rent to commercial tenants.

Staff Attorney Radiches was prepared to present the Commission Staff recommendation. The Petitioner and his attorney, Robert Craven, Esq., were present via video links. Attorney Craven asked the Commission for a continuance so that he could research land evidence records relating to ownership issues relevant to this advisory opinion. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously

VOTED: To continue the Commission’s consideration of the advisory opinion requested by James Grundy, the Chairman of the North Kingstown Planning Commission, to a future meeting.

The next advisory opinion was that of:

Tom Furey, the Chairman of the Rhode Island Contractors Registration and Licensing Board (“CRLB”), requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in a matter currently pending before the CRLB, given that the appellant in said matter hired the Petitioner to perform work on the property that is the subject of the appeal.

Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. The Petitioner addressed the Commission and represented that the work he performed and billed in this matter was insubstantial in comparison to the amount of work his business performs and bills annually. In response to Chair Quinn, the Petitioner stated that the CRLB is comprised of seven members, with two current vacancies and three members possibly recusing in this matter. Staff Attorney Radiches informed that if quorum issues arise, the Petitioner may contact the Commission again for further guidance. In response to Chair Quinn and Commissioner Palumbo, Executive Director Gramitt explained that safe-harbor protection would not apply here because the Staff is recommending that the Petitioner not participate in the subject matter. He stated that if a complaint were filed against the Petitioner for participating, the Commission would not likely proceed with the complaint, whereas in the context of an advisory opinion, the Commission may opine as to the propriety of the Petitioner’s participation under the R.I. Constitution. Executive Director Gramitt noted that the Commission, historically, has refused to confer its imprimatur on conduct that is likely to carry an appearance of impropriety. Commissioner Murphy agreed that the Commission would not want to rubber-stamp such conduct. Commissioner Bennett advised the Petitioner to err on the side of caution regarding his professional and public positions. In response to Commissioner Palumbo, the Petitioner represented that the appellant was fined at the staff level and is now bringing an appeal. The Petitioner stated that his business did work for the appellant in the past, but the Petitioner himself did not perform the work. Commissioner Murphy stated that he might reconsider the matter if the Petitioner’s recusal will create a hardship for the CRLB.

In response to Chair Quinn, the Petitioner stated that the matter is not time-sensitive, as the appellant has requested an extension. In response to Commissioner Palumbo, Staff Attorney Radiches explained that if the Commission votes to issue the advisory opinion, the direction to the Petitioner will be that, while he is not prohibited by the Code of Ethics from participating, he should not participate. Legal Counsel DeSimone informed that if no advisory opinion issues today, then the Petitioner has no guidance. In response to Commissioner Palumbo, Staff Attorney Radiches stated that if the Commission does not vote to issue the opinion, then the Commission is not on record for advising the Petitioner against this conduct. In response to Commissioner Corrente, Staff Attorney Radiches explained that the Rule of Necessity might apply but the Staff would have to perform an analysis of the other three members’ conflicts. Executive Director Gramitt proposed that if quorum issues are presented the Staff could draft another opinion that focuses on a change in circumstances and less on the Rule of Necessity and expedite it for the next meeting. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Murphy, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Tom Furey, the Chairman of the Rhode Island Contractors Registration and Licensing Board (“CRLB”).

The next advisory opinion was that of:

John Cullen, the Secretary of the Block Island Tourism Council, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in discussions and decision-making by the Tourism Council concerning whether to publicly support a pilot program proposed by the Rhode Island Public Transit Authority (“RIPTA”) wherein RIPTA would operate two trolleys on Block Island during the 2021 summer season, given that the Petitioner is currently on a waiting list to receive a taxi license on Block Island.

Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Staff Attorney Radiches informed that she had previously spoken with the Petitioner and he did not have an issue with the Commission proceeding if he could not attend. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to John Cullen, the Secretary of the Block Island Tourism Council.

The final advisory opinion was that of:

Jessica Willi, the Executive Director of the Block Island Tourism Council, requests an advisory opinion regarding: (1) what limitations, if any, the Code of Ethics places upon her in the performance of her public duties, given that her spouse owns Captain Nick’s Bar and Nightclub (“Captain Nick’s”) and Fishworks, a bait and tackle store and fishing charter business, and that her private employer owns Kimberly’s Restaurant (“Kimberly’s), among others, and; (2) whether the Code of Ethics prohibits her from engaging in secondary private employment at Captain Nick’s and/or Kimberly’s.

Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner

was present via video link. In response to Chair Quinn, the Petitioner represented that when she markets Block Island to the press, she is conscious about not promoting her spouse’s business or any business over another. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Murphy, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Jessica Willi, the Executive Director of the Block Island Tourism Council.

The next order of business was that of:

New Business proposed for future Commission agendas and general comments from the Commission.

There was none.

Executive Director Gramitt stated that he and Staff Attorney Popova Papa conferred regarding the advisory opinion issued to The Honorable Gayle Goldin. He explained that he would like to review the recording of the meeting and return to the Commission on April 6, 2021, with any clarification and amendment to the proposed minutes. In response to Commissioner Murphy, Executive Director Gramitt stated that the Commission cannot change or add anything to the record. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Murphy, it was unanimously

VOTED: To continue the Commission’s vote to approve the minutes of the Open Session held on March 2, 2021, to the Commission’s April 6, 2021 meeting.

At 10:45 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Bennett, it was unanimously

VOTED: To go into Executive Session, to wit:

a.) Motion to approve minutes of Executive Session held on March 2, 2021, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4).

b.) Motion to return to Open Session.

At 10:49 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, which information will also be available on the Commission’s website:

1. Voted (4-0) to approve the minutes of the Executive Session held on March 2, 2021.

[Reporter’s Note: The vote was as follows:

AYES: Marisa A. Quinn; J. Douglas Bennett; Timothy Murphy; and Kyle P. Palumbo.

ABSTENTION: Arianne Corrente.]

2. Unanimously voted (5-0) to return to Open Session.

At 10:51 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Bennett, it was unanimously

VOTED: To adjourn the meeting.

Respectfully submitted,

_____________________________

Kyle P. Palumbo

_{[1] On March 9, 2020, former Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, the former Governor issued Executive Order 20-46 on June 12, 2020, which, in part, relieved public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act. Pursuant to the issuance of Executive Order 21-11 by Governor Daniel McKee, on March 3, 2021, said relief was extended through April 1, 2021.Secretary}