Minutes May 21, 2019 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION May 21, 2019 The Rhode Island Ethics Commission held its 7th 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, May 21, 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 Robert A. Salk Arianne Corrente, Secretary Emili B. Vaziri* The following Commissioner(s) were not present: M. Therese Antone and Timothy Murphy. 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 9:00 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on April 23, 2019. Commissioner Quinn noted that although the minutes reflect accurately that she voted to approve the April 9, 2019 Open Session minute, they state that she arrived after the minutes were already approved. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Quinn, it was VOTED: To approve the minutes of the Open Session held on April 23, 2019, as amended. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; and Marisa A. Quinn. ABSTENTIONS: Robert A. Salk. 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: Gary S. Ezovski, Town Administrator for the Town of North Smithfield, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon him, given that Econox Renewables intends to petition the North Smithfield Planning and Zoning Boards for a special use permit required for the installation and operation of a solar power generator station on land owned by the Petitioner. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Salk and duly seconded by Commissioner Bennett, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Gary S. Ezovski, Town Administrator for the Town of North Smithfield. The next advisory opinion was that of: Brian J. McGuirk, an Administrator, Operations Management with the Department of Administration, Division of Information Technology, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting an appointment to the Board of Directors for Greenwood Credit Union, given his assignment as the Information Technology Manager at the Department of Business Regulation, which regulates the Greenwood Credit Union. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Popova Papa noted that page two of the draft opinion omits the word “state” in the phrase “state or municipal agency” when citing to R.I. Gen. Laws § 36-14-5(e)(1)-(3). In response to Commissioner Bennett, the Petitioner stated that he will receive renumeration for the position on the Greenwood Credit Union Board of Directors but does not yet know the amount. In response to Commissioner Quinn, the Petitioner informed that the Board’s role and responsibilities include serving as a brain trust and sounding board for strategic planning. He stated that he has a special skill set that does not presently exist among any of the Board members. *Commissioner Vaziri arrived at 9:15 a.m. In response to Chair Cheit, the Petitioner explained that he was asked approximately 18 months ago to engage in an exploratory conversation by a few Board members who are familiar with his skill set and background. He stated that more recently, the Chair of the Board, Tom Ahern, contacted him to interview for membership on the Board. The Petitioner further stated that the Board has recommended him for membership subject to his receipt of an advisory opinion from the Ethics Commission. In response to Chair Cheit, the Petitioner informed that his conversations with the Board did not involve his work at the Department of Business Regulation (“DBR”). In response to Commissioner Quinn, the Petitioner explained that, in considering any potential issues between the two entities, he thought about what access, if any, he might have to files and software log-ins maintained by the national regulatory authority for credit unions. The Petitioner informed that, upon further inquiry, he will not have access to any software log-ins. Commissioner Bennett expressed concern over the Petitioner’s position at DBR in the future. The Petitioner stated that he is employed by the Department of Administration, the Division of Information Technology (“DoIT”), and his current assignment involves technology projects at DBR and there is large scope for expansion. His assignment to DBR is recent and occurred after his initial communication with the Board. He represented that if his duties and roles change, he will request another advisory opinion. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, as amended and attached hereto, to Brian J. McGuirk, an Administrator, Operations Management with the Department of Administration, Division of Information Technology. AYES: Ross Cheit; Arianne Corrente; Marisa A. Quinn; Robert A. Salk; and Emili B. Vaziri. NOES: J. Douglas Bennett. The final 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 of their departments. Senior Staff Attorney Katherine D’Arezzo presented the Commission Staff recommendation. The Petitioner was present along with her attorney, Janne Reisch, Esq. Attorney Reisch discussed R.I. Gen. Laws § 36-14-5(h) and the example of the Town placing an order for a sheet cake with a bakery. She queried whether it is reasonable to require the bakery owner to go through an open and public process to order a sheet cake. Attorney Reisch referred to a prior complaint that was addressed at the last Commission meeting and involved the sale of paper products to the town. She queried whether § 5(h) is a complete bar to selling goods valued at only a few hundred dollars. Attorney Reisch discussed R.I. Gen. Laws Chapter 45-55 relating to the award of municipal contracts and the Legislature’s inclusion of a statutory provision for small purchases. She informed that, under that Chapter 55, municipalities are not required to bid out for purchases under $5,000. She further informed that a municipality can set lower amounts, however Westerly’s amount is an annual aggregate of $5,000. Attorney Reisch argued that it is not practical for municipalities to bid out for small purchases. Senior Staff Attorney D’Arezzo informed that there are no exceptions under § 5(h). In response to Chair Cheit, Senior Staff Attorney D’Arezzo stated that the advisory opinions cited in the draft do not address how an open and public process would work for a town making small purchases. In further response to Chair Cheit, she stated that the Commission has never opined as to what specific procedures would satisfy the open and public process required by § 5(h), but it potentially could involve something short of a formal RFP process, such as postings on the Town’s website. She further stated that the Commission’s jurisdiction is over the Petitioner and not the Town. In response to Commissioner Quinn, the Petitioner informed that, in 2018, she had approximately seven or eight orders with the Town totaling less than $5,000. Attorney Reisch informed that she spoke with the Town’s Procurement Office regarding Ms. Adams and whether it could post requests for quotes under $500 on the Town’s website, but Attorney Reisch was informed that there are already procedures in place for the Town to follow when it makes purchases under $500. Chair Cheit commented that there can be costs associated with accepting public office. In response to Chair Cheit, Senior Staff Attorney D’Arezzo stated that, notwithstanding the Town’s rules and policies, § 5(h) applies to these facts. In response to Chair Cheit, Legal Counsel DeSimone advised that § 5(h) is presumed valid as it specifically applies to the Commission and any putative conflict with Chapter 45-55 would have to be addressed by the General Assembly. In response to the Petitioner’s inquiry, Chair Cheit informed that she must advise the Town that unless it utilizes an open and public bidding process, she cannot sell products to the Town. Commissioner Corrente concurred with Chair Cheit that public service comes with some consequences and here, the Petitioner has greater responsibilities as a public officer. Commissioner Corrente advised the Petitioner and Attorney Reisch to provide a copy of the advisory opinion to the School Committee, the Town and School officials, and the Petitioner’s spouse and employees. Commissioner Corrente stated that conflicts affect all public officials from the President of the U.S. and members of Congress down to municipal officials. Chair Cheit concluded by stating that the Commission has strict rules to follow which instill confidence in the system and in public officers. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, attached hereto, to Mary Adams, a member of the Westerly School Committee, who in her private capacity owns and operates J. Mack Studios, LLC. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Marisa A. Quinn; and Robert A. Salk. NOES: Emili B. Vaziri. Executive Session. At 9:59 a.m., uponmotion made and duly seconded, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on April 23, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Daniel McKee, Complaint No. 2019-6, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: Valerie Lawson, Complaint No. 2019-7, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. Francis X. Flaherty v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC-2019-5088, pursuant to R.I. Gen. Laws § 42-46-5(a)(2). 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 23, 2019. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Marisa A. Quinn; and Emili B. Vaziri. ABSTENTIONS: Robert A. Salk.] 2. Voted (2-3) in the matter of In re: Valerie Lawson, Complaint No. 2019-7, to initially determine that the Complaint fails to allege facts that, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and to dismiss the Complaint. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit and Emili B. Vaziri. NOES: J. Douglas Bennett; Marisa A. Quinn; and Robert A. Salk. RECUSALS: Arianne Corrente.] Voted (3-2) in the matter of In re: Valerie Lawson, Complaint No. 2019-7, 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 a full investigation. [Reporter’s Note: The vote was as follows: AYES: J. Douglas Bennett; Marisa A. Quinn; and Robert A. Salk. NOES: Ross Cheit and Emili B. Vaziri. RECUSALS: Arianne Corrente.] Commissioner Quinn left the meeting at 10:30 a.m. 3. Voted (4-1) in the matter of In re: Daniel McKee, Complaint No. 2019-6, to approve a proposed Informal Resolution and Settlement and impose a civil penalty of $250. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; and Robert A. Salk. NOES: Emili B. Vaziri.] 4. Litigation update in Francis X. Flaherty v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC-2019-5088. The next order of business was: Motion to seal minutes of Executive Session held on May 21, 2019. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Bennett, it was unanimously VOTED: To seal the minutes of the Executive Session held on May 21, 2019. The next order of business was: Adjudications. In re: Neil Hall, Complaint No. NF2018-14. The hearing was stenographically recorded and a transcript of the proceeding will be available at the Commission’s Office. Commission Prosecutor Giusti represented the People of the State of Rhode Island. The Respondent, Neil Hall, was present. Chair Cheit read the Commission’s Finding of Probable Cause. Commission Prosecutor Giusti presented the case to the Commission. She moved to admit Prosecution’s Exhibit 1, the affidavit of Michelle Berg, Ethics Commission Financial Disclosure Officer, along with six attachments into evidence for identification. Exhibit 1 was admitted for identification. Commission Prosecutor Giusti also moved to admit Prosecution’s Exhibit 2, the affidavit of Gary V. Petrarca, Ethics Commission Investigator, along with seven attachments into evidence for identification. Exhibit 2 was admitted for identification. Copies were distributed to Commission members and the Respondent. Commission Prosecutor Giusti summarized the evidence and moved to admit the exhibits into evidence as full. Chair Cheit granted the motion. The Respondent was sworn in and presented arguments. The Commission questioned the Respondent. Commission Prosecutor Giusti further questioned the Respondent. The discussion turned to the imposition of a civil penalty. In response to Chair Cheit, Commission Prosecutor Giusti recommended a $750 civil penalty. Discussion ensued. Upon motion made by Commissioner Salk and duly seconded by Commissioner Corrente, it was VOTED: That the Respondent, Neil Hall, committed a knowing and willful violation of R.I. Gen. Laws § 36-14-16 by failing to timely file a 2017 Financial Disclosure Statement with the Ethics Commission. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; and Robert A. Salk. NOES: Emili B. Vaziri. Upon motion made by Commissioner Salk and duly seconded by Commissioner Bennett, it was VOTED: To impose a civil penalty in the amount of $250. AYES: J. Douglas Bennett; Arianne Corrente; Robert A. Salk; and Emili B. Vaziri. NOES: Ross Cheit. Chair Cheit informed that the remaining two non-filing adjudications will be continued to the next Commission meeting. Commissioner Salk left the meeting at 11:45 a.m. Director’s Report: Status report and updates. a.) Complaints and investigations There are nine complaints pending, which include two non-filing cases that will be continued to the Commission’s next meeting. b.) Advisory opinions There are five advisory opinions pending as of today. c.) Access to Public Records Act requests since last meeting Seven APRA requests were received since the last meeting, all of which were granted within one business day. Executive Director Gramitt noted that the Commission has received 3,600 2018 financial statements to date, and there are approximately 550 remaining. In response to Commissioner Bennett, Executive Director Gramitt stated that the Staff will make special inquiries regarding building officials when it sends the lists of officials’ names that are required to file to the respective municipalities. In response to Commissioner Corrente, Executive Director Gramitt informed that the Staff sends a reminder of who is required to file when it sends the list of officials’ names to each municipality. At 11:48 a.m., upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Arianne Corrente Secretary