Minutes April 23, 2019 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION Amended April 23, 2019 The Rhode Island Ethics Commission held its 6th 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, April 23, 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 Timothy Murphy Arianne Corrente, Secretary Emili B. Vaziri 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 Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross; Peter J. Mancini; and Gary V. Petrarca. At 9:05 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on April 9, 2019. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was VOTED: To approve the minutes of the Open Session held on April 9, 2019. AYES: Ross Cheit; Arianne Corrente; Timothy Murphy; Marisa A. Quinn; and Emili B. Vaziri. ABSTENTIONS: M. Therese Antone and 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: Helen Anthony, a member of the Providence City Council, who in her private capacity is an attorney with Handy Law, LLC, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in carrying out her public duties, given that Handy Law, LLC, represents the City of Providence and other clients before various Providence municipal agencies. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. In response to Chair Cheit, the Petitioner explained that Handy Law has a reputation in the community for handling energy cases. She informed that the Solicitor for the City of Providence, Jeffrey Dana, Esq., engaged Handy Law to assist with the development of rules and procedures for the implementation of the Rhode Island Small Cell Siting Act and that she had no role in this engagement. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Helen Anthony, a member of the Providence City Council. The next advisory opinion was that of: Richard Ross, a member of the Little Compton Planning Board, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board, in order to seek approval for the administrative subdivision of properties adjacent to his primary residence. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present along with his attorney, Andrew Teitz, Esq. Attorney Teitz explained that the rights the Petitioner will acquire will not be used for commercial purposes. In response to Commissioner Antone, Attorney Teitz further explained that Lots 72 and 40-3 are adjacent to his client’s property and owned by two different family trusts. He stated that the Little Compton Agricultural Conservancy Trust and the Nature Conservancy will each acquire different rights to the lots, and the Petitioner will acquire the “leftover” interest. Attorney Teitz added that the development rights are prohibited in perpetuity with the permissible uses limited to farming or open space. In response to Commissioner Bennett, the Petitioner stated that he will recuse when Attorney Teitz appears before the Planning Board on the application for administrative subdivision. In further response to Commissioner Bennett, the Petitioner stated that once the development rights are sold no development of the lots can occur. Commissioner Antone noted that the administrative subdivision will likely add value to the Petitioner’s property. Staff Attorney Popova Papa asked the Commission if the advisory opinion should be amended to replace the word “preserved” at the bottom of the first page with “restricted” to describe the development rights preserved in perpetuity. Commissioner Antone and Legal Counsel Desimone suggested use of the term “prohibited.” Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Richard Ross, a member of the Little Compton Planning Board. The next advisory opinion was that of: Mary Adams, a member of the Westerly School Committee, who in her private capacity owns and operates J. Mack Studios, LLC, seeks an advisory opinion regarding whether her business may continue to sell custom decorated apparel and promotional products to various individuals and groups associated with the Westerly Public Schools, as well as to the Westerly Public Schools and the Town of Westerly, or any departments thereof. Senior Staff Attorney Katherine D’Arezzo presented the Commission Staff recommendation. The Petitioner was present along with her attorney, Janne Reisch, Esq. Attorney Reisch disagreed that Regulation 1.5.4 applies to the Petitioner’s business. She explained that the Petitioner and her spouse are manufacturers and provide a finished product, decorated apparel and other items, not services. Attorney Reisch contrasted the fencing and auto repair examples cited in the draft advisory opinion. She stated that in the fencing example, the customer hires a licensed contractor to perform a service, and in the auto repair shop example, a customer hires a mechanic to perform a service and pays for the mechanic’s time and labor. She argued that a customer does not hire the Petitioner or pay for her time or labor, but instead orders a product from the Petitioner’s business and pays sales tax on that product. She likened the Petitioner’s business to a bakery, explaining that a customer can custom order a cake just as a customer can custom order t-shirts from the Petitioner. Discussion turned to the language of Regulation 1.5.4 and the term “employment” which includes service as an independent contractor. In response to Chair Cheit, Senior Staff Attorney D’Arezzo explained that the advisory opinions cited in the draft involved services by independent contractors and constituted employment under the regulation. She further explained that the issue in the present matter is whether the Petitioner’s business transactions constitute employment with a municipality. In response to Commissioner Murphy, Senior Staff Attorney D’Arezzo informed that, in the Fonseca matter, the Commission found that there was no contractual relationship between the respondent and the municipality. In response to Chair Cheit and Commissioner Corrente, Attorney Reisch explained that the monies from the Student Activity Account belong to the students. The Petitioner gave an example of the “Dog Pound,” a student-run cheering club. She explained that the students order t-shirts from her business to sell on their own and raise money for school-related activities. She further explained that an advisor guides the students through the process of purchasing the items. In response to Chair Cheit, the Petitioner stated that the school employees could conceivably influence the students’ decisions about where to order and from whom. Attorney Reisch asked the Commission whether it considers the Petitioner a vendor or independent contractor for purposes of Regulation 1.5.4. In response to Chair Cheir, Senior Staff Attorney D’Arezzo stated that the draft opinion is based on the Commission’s past interpretation of Regulation 1.5.4, but the Commission could determine that further analysis is needed with respect to its application to vendors and independent contractors. In response to Commissioner Quinn, Senior Staff Attorney D’Arezzo stated that if the Petitioner is a vendor, then Regulation 1.5.4 does not apply to her. Senior Staff Attorney D’Arezzo explained that the advisory opinion was drafted based only on an analysis of Regulation 1.5.4 because, thereunder, the Petitioner’s business activity would be prohibited. She further explained that if Regulation 1.5.4 does not apply, the Commission must consider whether the Petitioner’s transactions would be prohibited under § 36-14-5(h). In response to Chair Cheit, Senior Staff Attorney D’Arezzo noted that an analysis of § 5(h) would apply only to the Petitioner’s transactions with public schools and not to private individuals. In response to Commissioner Quinn, Senior Staff Attorney D’Arezzo distinguished the facts in Advisory Opinion 2015-19 concerning a NAPA auto parts store by stating that the Petitioner provides custom, unique orders that cannot be returned, thereby removing these orders from the realm of ordinary transactions as discussed in A.O. 2015-19. Chair Cheit commented that applying a regulation with this much ambiguity is not appropriate. In response to Chair Cheit, Executive Director Gramitt proposed that the Commission not render a decision in this instance today. He further proposed that Senior Staff Attorney D’Arezzo redraft the advisory opinion to find that Regulation 1.5.4 does not apply to these facts and, instead, apply a § 5(h) analysis to instances where the Westerly School Department or the Town of Westerly is the customer. In response to Chair Cheit, Senior Staff Attorney D’Arezzo informed that a new analysis under § 5(h) would not apply to private individuals and groups as the Petitioner is not prohibited from doing business with such persons and groups. In response to Chair Cheit, the Petitioner represented that her business does approximately $10,000 or less in total annual sales, or less than 10 orders annually, with the Westerly Public Schools and Town of Westerly. In response to Chair Cheit, Executive Director Gramitt informed that no safe harbor would issue in this matter, but he expects that Senior Staff Attorney D’Arezzo will expeditiously redraft the advisory opinion to bring back before the Commission. The next advisory opinion was that of: Andrew Loiselle, a Motor Vehicle Operator Examiner for the Division of Motor Vehicles, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, on his own time, as a part-time Driver Retraining Course Administrator for the Driver Retraining Program at the Community College of Rhode Island. Staff Attorney Radiches informed that the Petitioner could not be present and presented the Commission Staff recommendation. In response to Commissioner Quinn, Staff Attorney Radiches stated that, following their competition of the course, the Petitioner’s students in the Driver Retraining Program at the Community College of Rhode Island will have no interaction with the Petitioner at the Division of Motor Vehicles. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Andrew Loiselle, a Motor Vehicle Operator Examiner for the Division of Motor Vehicles. Commissioner Antone left the meeting at 10:18 a.m. The final advisory opinion was that of: Arlene Tunney, a member of the New Shoreham Historic District Commission, who in her private capacity is an architect, seeks an advisory opinion regarding whether she qualifies for a hardship exception to the Code of Ethics’ prohibition on representing her client before her own board. Staff Attorney Radiches presented the Commission Staff recommendation. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Arlene Tunney, a member of the New Shoreham Historic District Commission. Executive Session. At 10:22 a.m., uponmotion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on April 9, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Neil Hall, Complaint No. NF2018-14, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: James P. Pierson, Complaint No. 2018-13, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. In re: Daniel McKee, Complaint No. 2019-6, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 5. Motion to return to Open Session. At 11:06 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 April 9, 2019. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; Arianne Corrente; Timothy Murphy; Marisa A. Quinn; and Emili B. Vaziri. ABSTENTIONS: J. Douglas Bennett.] 2. Unanimously voted (6-0) in the matter of In re: Neil Hall, Complaint No. NF2018-14, that probable cause exists to believe that the Respondent violated R.I. Gen. Laws § 36-14-16 by failing to timely file a 2017 Financial Disclosure Statement with the Rhode Island Ethics Commission. 3. Unanimously voted (6-0) in the matter of In re: James P. Pierson, Complaint No. 2018-13, that probable cause does not exist to believe that the Respondent violated the Code of Ethics. Chair Cheit noted that the Commission’s finding in this matter should not be construed as evincing its view that it is appropriate or advisable for a public school district to distribute partisan political messages or political fundraising appeals from or on behalf of candidates for public office. 4. Unanimously voted (6-0) in the matter of In re: Daniel McKee, Complaint No. 2019-6, 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. The next order of business was: Motion to seal minutes of Executive Session held on April 23, 2019. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Quinn, it was unanimously VOTED: To seal the minutes of the Executive Session held on April 23, 2019. The next order of business was: Director’s Report: Status report and updates. a.) Complaints and investigations There are nine complaints pending, which include six conflict matters and three non-filing complaints. Executive Director Gramitt noted that a recent article in the Boston Globe discussed the Rhode Island Ethics Commission as one of the first State agencies to refer delinquent cases to the State’s Central Collections Unit. The article explained that the Central Collections Unit was established by Rhode Island lawmakers last year to collect debts owed to the State. b.) Advisory opinions There are three advisory opinions pending. c.) Access to Public Records Act requests since last meeting Four APRA requests were received since the last meeting, all of which were granted within one business day. Executive Director Gramitt noted that the due date for filing the 2018 Financial Disclosure Statements is Friday, April 26, 2019. He stated that 2,850 out of 4,400 have filed so far, or 68%. The final order of business was: New Business. Commissioner Murphy commented that he would like to discuss at a future meeting the relationship between campaign contributions and petitions for government actions and whether the Commission can gather data to this effect. Chair Cheit noted that campaign finance falls under the purview of the Rhode Island Board of Elections. Commissioner Murphy noted that data should be available to the public that tracks private campaign contributions that are followed by requests for government action. Chair Cheit referenced an article by Lawrence Lessig pertaining to political corruption. He stated that this subject can be placed on a future agenda for further discussion. Chair Cheit further stated that the issue of interpreting Regulation 1.5.4 and the meaning of independent contractors and vendors also needs to be addressed at a future meeting. At 11:20 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Arianne Corrente Secretary