Minutes May 24, 2016 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION May 24, 2016 The Rhode Island Ethics Commission held its 6th 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, May 24, 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 Mark B. Heffner**+ John D. Lynch, Jr., Vice Chair** Timothy Murphy Robert A. Salk, Secretary*** James V. Murray M. Therese Antone*** Marisa A. Quinn* Frederick K. Butler 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, Peter J. Mancini and Gary V. Petrarca. At 9:01 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on April 26, 2016. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was VOTED: To approve minutes of the Open Session held on April 26, 2016. AYES: M. Therese Antone; James V. Murray; Timothy Murphy; Ross Cheit. ABSTENTIONS: Robert A. Salk; Frederick K. Butler. The next order of business was: Advisory Opinions. The advisory opinion was based on a draft advisory opinion prepared by Commission Staff for review by the Commission and was scheduled as an item on the Open Session Agenda for this date. *Commissioner Quinn arrived at 9:03 a.m. The only advisory opinion was that of: Colin Hynes, an alternate member of the Narragansett Zoning Board of Review, who in his private capacity is a landscape architect, requesting an advisory opinion regarding how he can avoid potential conflicts of interest related to his private clients’ variance application before the Narragansett Zoning Board of Review. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Colin Hynes, an alternate member of the Narragansett Zoning Board. The next order of business was: Executive Session. At 9:06 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Butler, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of the Executive Session held on April 26, 2016, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 2. In re: Donald J. Lally, Jr., Complaint No. 2015-7, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. In re: Antonio S. Fonseca, Complaint No. 2015-9, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 4. In re: Jason A. Albuquerque, Complaint No. 2016-2, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 5. In re: Brett Smiley, Complaint No. 2016-3, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 6. In re: Anthony E. Simon, Complaint No. 2016-4, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 7. In re: William J. Conley, Jr., Complaint No. 2016-5, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). **Commissioners Lynch and Heffner arrived at 9:15 a.m. during Executive Session. The Commission reconvened in Open Session at approximately 11:14 a.m. Chair Cheit reported that the Commission had yet to finish all of the matters in Executive Session but returned to Open Session to discuss Agenda Items 7 & 8 because two Commissioners needed to leave by 11:30 a.m. Chair Cheit stated that he would report out after all of the Executive Session matters were concluded. The next order of business was: Legislative Update: A discussion of the Commission’s legislative agenda and priorities for 2016, and a review, discussion and possible vote as to the Commission’s position on pending and anticipated legislation including: House Resolution H8189 and Senate Resolution S2953. Staff Attorney Gramitt summarized the bills listed on the agenda. He advised that H8189 and S2953 are companion bills that, upon passage, would put a ballot question on the November ballot regarding amending the Rhode Island Constitution relative to the Ethics Commission’s authority over the General Assembly. He explained that, in addition to restoring jurisdiction, H8189 and S2953 would result in the following changes: affirmative votes by six of the nine Commissioners would be required to promulgate or amend Commission regulations; the appeals process will be provided by law; the Commission could not remove a legislator from office; and a moratorium on the filing of complaints, either by the public or by the Ethics Commission, against candidates effective from the declaration of candidacy until the day after the election. Discussion ensued regarding the moratorium. Staff Attorney Gramitt stated that it would be discussed further in the next agenda item. He advised that he testified before the House and Senate Judiciary Committees that it would be preferable to enact a moratorium by regulation or statute, rather than by Constitutional amendment. In response to Commissioner Murphy, Staff Attorney Gramitt clarified that currently only a simple majority of the Commission’s quorum is required to promulgate or amend Commission regulations. The next order of business was: Commission discussion and potential vote re: receipt of correspondence from Common Cause Rhode Island asking the Commission to consider adopting a moratorium on public complaints against candidates for office for a fixed period of time before an election. John Marion, Executive Director of Common Cause Rhode Island, stated that he testified before the House and Senate Judiciary Committees regarding the bills discussed in the Legislative Update. He advised that all of the good government groups spoke in a single voice in support of restoring the Commission’s jurisdiction over members of the General Assembly. However, he stated that there was also a consensus amongst the good government groups that the moratorium should not be part of a constitutional amendment. Mr. Marion asked the Commission to implement a moratorium by adopting a Commission regulation. In contrast to the proposed moratorium in H8189 and S2953, he urged the Commission to consider: (1) a shorter time period, perhaps 90 days; and (2) that the moratorium exclude complaints initiated by the Ethics Commission. Chair Cheit stated that he agreed that there was an issue here with politically-motivated complaints in election seasons. He suggested that the Commission agree to start the process of rulemaking and direct staff to present a draft for consideration at the next meeting. Commissioner Murphy agreed. Legal Counsel Alves stated that, assuming the staff provides some proposals at the next meeting, a 30-day notice period would follow and the Commission could potentially promulgate a regulation in July, prior to this year’s election season. Discussion ensued about issues to consider for a proposed moratorium regulation. Commissioner Lynch suggested looking at whether people must file complaints in their personal capacity rather than in their official capacity. Commissioner Butler asked the staff to consider what would happen after the moratorium. He also stated that the staff should have the ability to initiate complaints during the election season. Commissioner Lynch requested statistics on how many election season complaints were dismissed versus those that resulted in a finding of violation. Commissioner Heffner requested statistics on how many election season complaints were filed against incumbents versus challengers. Staff Attorney Gramitt stated that the staff has already begun analyzing the complaints filed within the last ten years. He stated that for the next meeting the staff will present some draft language, statistics of past complaints during election seasons, and the results of research for similar moratoriums in other jurisdictions. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Salk, it was unanimously VOTED: To explore rulemaking for a moratorium of complaints during election seasons, and to direct staff to present some draft language, relevant statistics and examples from other jurisdictions at the Commission’s June 7, 2016 meeting. The next order of business was: Executive Session. At 11:35 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Salk, it was unanimously VOTED: To return to Executive Session to finish the remainder of the items listed above. *** Commissioners Antone and Salk left the meeting at 11:35 a.m. after the vote to go into Executive Session and did not return. + Commissioner Heffner left the meeting at 11:44 a.m., upon recusing from the final matter in Executive Session, In re: William J. Conley, Jr., Complaint No. 2016-5. He did not return. The Commission reconvened in Open Session at approximately 11:46 a.m. Upon motion made by Commissioner Lynch and duly seconded by Commissioner Butler, it was unanimously VOTED: To seal the minutes of the Executive Session held on May 24, 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. Voted to approve the minutes of the Executive Session held on April 26, 2016. [AYES: M. Therese Antone; James V. Murray; Marisa A. Quinn; Timothy Murphy; Ross Cheit. ABSTENTIONS: Robert A. Salk; Frederick K. Butler. **Commissioners Lynch and Heffner arrived after this vote.] 2. In the matter of In re: Donald J. Lally, Jr., Complaint No. 2015-7, the Commission: a. Voted 6 to 2 to find that there is probable cause to believe that the Respondent violated Commission Regulation 36-14-5007. [AYES: Robert A. Salk; Frederick K. Butler; Mark B. Heffner; Timothy Murphy; Marisa A. Quinn; Ross Cheit. NOES: M. Therese Antone; John D. Lynch, Jr.] b. Voted 5 to 3 to find that there is probable cause to believe that the Respondent violated R.I. Gen. Laws § 36-14-5(n)(1). [AYES: Robert A. Salk; Mark B. Heffner; Timothy Murphy; Marisa A. Quinn; Ross Cheit. NOES: M. Therese Antone; Frederick K. Butler; John D. Lynch, Jr.] [Commissioner Murray recused from this matter and was not present while it was being considered.] 3. In the matter of In re: Antonio S. Fonseca, Complaint No. 2015-9, the Commission voted on the counts set forth in the investigative report as follows: a. Voted 8 to 0 to find that there is not probable cause to believe that the Respondent violated the Code of Ethics as alleged in Counts 2, 3 & 5. b. Voted 4 to 4 to find that there is not probable cause to believe that the Respondent violated the Code of Ethics as alleged in Counts 4, 6 & 7. [AYES: Frederick K. Butler; Timothy Murphy; Marisa A. Quinn; Ross Cheit. NOES: M. Therese Antone; Robert A. Salk; James V. Murray; John D. Lynch, Jr.] c. Voted 8 to 0 to find that there is not probable cause to believe that the Respondent violated the Code of Ethics as alleged in Count 1. [Commissioner Heffner and Legal Counsel Alves recused from this matter and neither was present while it was being considered.] 4. In the matter of In re: Jason A. Albuquerque, Complaint No. 2016-2, unanimously voted (7 to 0) that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics. Therefore, the Complaint was dismissed. [Commissioners Antone and Salk left the meeting prior to the consideration of this matter.] 5. In the matter of In re: Brett Smiley, Complaint No. 2016-3, unanimously voted (7 to 0) that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics. Therefore, the Complaint was dismissed. [Commissioners Antone and Salk left the meeting prior to the consideration of this matter.] 6. In the matter of In re: Anthony E. Simon, Complaint No. 2016-4, unanimously voted (7 to 0) that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics. Therefore, the Complaint was dismissed. [Commissioners Antone and Salk left the meeting prior to the consideration of this matter.] 7. In the matter of In re: William J. Conley, Jr., Complaint No. 2016-5, unanimously voted (6 to 0) that the Complaint fails to state facts sufficient to constitute a knowing and willful violation of the Code of Ethics. Therefore, the Complaint was dismissed. [Commissioner Heffner recused from this matter and was not present while it was being considered. Commissioners Antone and Salk left the meeting prior to the consideration of this matter.] The next order of business was: Public Workshop on the Financial Disclosure Process: The Commission will receive and review written and oral public comment concerning the Financial Disclosure Process, including: (1) whether financial disclosure statements should be posted online for better public access; (2) other suggestions to improve access and transparency; and (3) ways to help filers complete their statements accurately and on time. The Commission may discuss same and potentially vote to take further action. Staff Attorney Gramitt stated that at the end of 2015, after receiving a petition from Common Cause Rhode Island, the Commission agreed to explore the idea of posting Financial Disclosure Statements (“Statements”) online. He advised that Commission staff prepared a notice for this workshop and included it in the March 2016 mailing of the 2015 Statement to the approximately 4,000 required filers. He stated that the same notice was also emailed to all of the required filers who had previously provided an email address in the financial disclosure database. He informed that the notice solicited feedback on the financial disclosure process in general as well as whether the Statements should be posted online. He advised that seven (7) written comments were received, and six (6) out of the seven (7) comments were against online posting of the Statements. Staff Attorney Gramitt summarized the Commission’s current procedure for handling requests for Statements. He stated that Statements are provided via email during business hours and requests are usually complied with the same day, if not within the same hour of the request. He stated that recent news stories demonstrated the effectiveness of the current system. John Marion, Executive Director of Common Cause Rhode Island, was the only sign-in. He advised that Common Cause is simply asking the Commission to settle the issue of whether Statements should be posted online. He stated that the current process seemed to strike a balance between access and privacy, and he noted that access is currently very good. Chair Cheit stated that he was very proud that Commission staff handles requests for public records with speed, courtesy and professionalism. In response to Commissioner Quinn, Staff Attorney Gramitt stated that public records requests can be made anonymously and the Access to Public Records Act (“APRA”) provides for anonymous requests. In response to Chair Cheit, Staff Attorney Gramitt stated that if the Statements were posted online, significant redaction would be required. Upon motion made by Commissioner Murray and duly seconded by Commissioner Butler, it was unanimously VOTED: To find that there is no need to change the current system of providing access to Financial Disclosure Statements through APRA requests. The next order of business was: Director’s Report. Executive Director Willever reported that there were four (4) complaints and three (3) advisory opinions pending. He stated that forty-two (42) APRA requests were received since the last meeting, forty (40) of which were granted within one business day, one (1) of which was denied because it involved investigative material, and one (1) of which was still under review. Executive Director Willever congratulated Chief of Investigations Steven T. Cross on his twenty (20) years of service to the Commission. He announced that Sherilyn Gutierrez was recently hired as the Commission’s new receptionist. He also announced that Staff Attorney Stewart will be leaving the Commission to accept a position with the Rhode Island Department of Business Regulation. He complimented her on the fine work she has done for the Commission. Chair Cheit thanked Staff Attorney Stewart for her excellent work and wished her well in her new position. The next order of business was: New Business There being none, at 12:05 p.m., upon motion made by Commissioner Murray and duly seconded by Commissioner Butler, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ Robert A. Salk Secretary