Minutes March 22, 2016 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION March 22, 2016 The Rhode Island Ethics Commission held its 4th meeting of 2016 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, March 22, 2016, 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 Timothy Murphy Frederick K. Butler** James V. Murray Mark B. Heffner* Marisa A. Quinn Also present were Edmund L. Alves, 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 Amy C. Stewart; and Commission Investigators Steven T. Cross and Gary V. Petrarca. At 9:03 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on February 23, 2016. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To approve minutes of the Open Session held on February 23, 2016. 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: Kimberly L. Alves, a member of the North Smithfield Town Council, requesting an advisory opinion regarding whether the Code of Ethics requires her to recuse from participation when her husband, the Director of the North Smithfield Department of Public Works, appears before the Town Council in his official capacity relative to the operations of the Department of Public Works. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was present. In response to Chair Cheit, Staff Attorney Stewart stated that information sharing between the Town Council and one of its departments is non-adversarial. She clarified that if the Town Council was sitting in a quasi-judicial capacity, the proceeding could be adversarial, and if it involved the Petitioner’s husband, the Code would require the Petitioner to recuse. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Kimberly L. Alves, a member of the North Smithfield Town Council. The next advisory opinion was that of: John R. Pariseault, Esq. , a member of the Bonnet Shores Fire District Council, requesting an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Fire District Council’s consideration of a request for a sewer line easement for the Bonnet Shores Beach Club, given that the Petitioner and other members of his family are members of Bonnet Shores Beach Club and reside within the Fire District. *Commissioner Heffner arrived at 9:11 a.m. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was present. In response to Commissioner Murphy, Staff Attorney Stewart stated that recusal by all five of the seven Fire District Council members who own a Bonnet Shores Beach Club condominium unit would render the Fire District Council unable to act. She explained that if the Commission found that those five members had conflicts of interest, then the Commission would consider applying the Rule of Necessity through the issuance of an advisory opinion. In response to Commissioner Quinn, Staff Attorney Stewart stated that all seven Fire District Council members reside within the Fire District. In response to Commissioner Murphy, Staff Attorney Stewart replied that the Beach Club will be paying for the cost of its municipal sewer connection. She further stated that if the Fire District Council grants the easement, the Beach Club will still have to secure final approvals from the Town of Narragansett and the Rhode Island Coastal Resources Management Council. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to John R. Pariseault, Esq., a member of the Bonnet Shores Fire District Council. The final advisory opinion was that of: Anthony D. Murgo , a member of the Bristol Planning Board, requesting an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s consideration of a proposed hotel development plan on Gooding Avenue, given that his first cousins own two residences within 300 feet of the perimeter of the subject property. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was not present. In response to Chair Cheit, Staff Attorney Stewart stated that she does not believe that the Petitioner knew that his cousins had objected to this application before the Bristol Technical Review Committee in January. She stated that the Petitioner is not a member of the Technical Review Committee. Chair Cheit directed staff to delete the word “very” from the fifth line of the third paragraph on page three. He stated that the argument for not applying the class exception relates more to the subclasses than the small size of the class. He further stated that he did not want to imply that ninety-three properties was too small to constitute a class if the circumstances were different. Upon motion made by Commissioner Butler and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Anthony D. Murgo, a member of the Bristol Planning Board. The next order of business was: Director’s Report. Executive Director Willever reported that there were five (5) complaints pending, one (1) of which was a staff-initiated complaint for the failure to timely file a financial disclosure statement. He reported that there was one (1) ongoing preliminary investigation. He stated that eight (8) APRA requests were granted since the last meeting, all of which were completed within one (1) business day. Executive Director Willever also reported that Alice Aieskoll, the Commission’s former Research Aide, has been promoted to the position of Administrative Assistant. He advised that the now vacant Research Aide position will be advertised shortly and he hopes to have that vacancy filled by the end of the fiscal year. The next order of business was: Senator James C. Sheehan’s remarks upon, and the Ethics Commission’s discussion of, Senate Resolution 2016 – S 2427, “A Joint Resolution to Approve and Publish and Submit to the Electors a Proposition of Amendment to the Constitution of the State – Ethics Commission.” Senator Sheehan distributed some materials to the Commission. He presented S 2427 to the Commission, which he has dubbed the “Common Ground” Ethics Amendment, which would restore jurisdiction of the Ethics Commission over the General Assembly. He discussed how S 2427 differs from previous iterations of this resolution that he had sponsored in prior years. He stated that he believes that S 2427 is a good compromise and is more likely to be approved by the General Assembly than a stricter proposal without some form of public speech exception. He encouraged the Ethics Commission to support S 2427. Chair Cheit thanked Senator Sheehan for coming and discussing S 2427 with the Commission. The next order of business was: Commission discussion and potential vote re: a Petition filed by Sam Bell and Meghan Kallman to adopt regulations pertaining to state employees engaging in campaign-related activities during state work hours or utilizing state resources. Sam Bell presented his Petition to the Commission and asked the Commission to hold a workshop to explore the issue in greater detail. Discussion ensued. Chair Cheit stated that this Petition was not ripe for rulemaking because it did not include any proposed regulatory language. Chair Cheit suggested holding a workshop to explore the issues raised by Mr. Bell’s Petition and to determine if there is a need for the Ethics Commission to clarify the application of the Code of Ethics in these instances. Upon motion made by Commissioner Butler and duly seconded by Commissioner Heffner, it was unanimously VOTED: To deny the Petition for rulemaking but to schedule a workshop in the future to further explore the issues raised in the Petition. The next order of business was: Adjudication: In re: Frank Hyde, Complaint No. NF2015-5. The hearing was stenographically recorded and a transcript of the proceeding will be available at the Commission Offices. Commission Prosecutor Teresa Giusti represented the People of the State of Rhode Island. The Respondent, Frank Hyde, was not present. Tracy Teixeira, Commission Officer Manager, was present during the hearing to serve as clerk and assist with the exhibits. Commission Prosecutor Giusti presented the case to the Commission. She offered Exhibit 1 as evidence, the affidavit of Michelle Berg, Ethics Commission Administrative Officer in charge of Financial Disclosure, along with six attachments. Exhibit 1 was admitted as a full exhibit. She also offered Exhibit 2 as evidence, the affidavit of Gary V. Petrarca, Ethics Commission Investigator, along with two attachments. Exhibit 2 was admitted as a full exhibit. The Commission questioned Commission Prosecutor Giusti. The Commission deliberated in open session. Upon motion made by Commissioner Heffner and duly seconded by Commissioner Butler, it was unanimously VOTED: That the Respondent, Frank Hyde, violated R.I. Gen. Laws § 36-14-16 by failing to timely file a 2014 Financial Disclosure Statement with the Ethics Commission. The discussion turned to the imposition of a civil penalty. In response to Chair Cheit, Commission Prosecutor Giusti recommended a $1,500 civil penalty. Discussion ensued regarding lowering the penalty based upon the Respondent’s submission of a letter regarding financial hardship. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To impose a $1,000 civil penalty. The next order of business was: Executive Session. At 10:37 a.m., upon motion made by Commissioner Quinn and duly seconded by Commissioner Butler, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on January 26, 2016. 2. Notification of initiation of Preliminary Investigation No. 2016-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). The Commission reconvened in Open Session at approximately 10:47 a.m. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murray, it was unanimously VOTED: To seal the minutes of the Executive Session held on March 22, 2016. 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 to approve the minutes of the Executive Session held on January 26, 2016. 2. Received notification of initiation of Preliminary Investigation No. 2016-1. [Reporter’s note: Commission Butler left the meeting at 10:39 a.m. after the executive session minutes were approved and did not return. He recused from Preliminary Investigation No. 2016-1.] The next order of business was: New Business There being none, at 10:50 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ Robert A. Salk Secretary