Minutes June 2, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 2, 2020 The Rhode Island Ethics Commission remotely conducted its 7th meeting of 2020 in Zoom webinar format at 9:00 a.m. on Tuesday, June 2, 2020, pursuant to the notice published at the Commission offices, the State House Library, 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 Emili B. Vaziri M. Therese Antone The following Commissioner was 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 and Gary V. Petrarca. At 9:17 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 explained that, after Open Session adjourns, the Commission will convene Executive Session in a separate webinar meeting, after which the Commission will return to Open Session to provide a live report on all actions taken in Executive Session. He noted that a written report of all actions taken in Executive Session will be published and available on the Commission’s website after the meeting ends. Copies of the written report can be also requested by calling the Commission at (401) 222-3790 or emailing ethics.email@ethics.ri.gov. Executive Director Gramitt informed that the Governor extended the executive order suspending the Open Meetings Act requirements for public bodies through June 14, 2020. He stated that the Commission’s next meeting will be held on June 16, 2020, and that there may be an additional extension of the executive order before then. Executive Director Gramitt informed the public that anyone may call the Commission or use the “Q & A” feature during the Zoom webinar for any technical questions or issues during the meeting. Chair Quinn thanked the Commission staff for its efficient operation of business during these difficult times. The next order of business was: Approval of minutes of the Open Session held on April 28, 2020. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was unanimously VOTED: To approve the minutes of the Open Session held on April 28, 2020. The next order of business was: Motion to seal minutes of Executive Session held on April 28, 2020. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Murphy, it was unanimously VOTED: To seal the minutes of the Executive Session held on April 28, 2020. The next order of business was: Director’s Report: Status report and updates. a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing Executive Director Gramitt informed that there was no damage to the Commission’s office due to the rioting that occurred the previous night in the city. He explained that a majority of the staff has been teleworking and a small number of staff members has been present in the office daily. b.) Complaints and investigations pending There are eight complaints pending, all but one of which are conflict of interest matters. c.) Advisory opinions pending There are five advisory opinions pending. d.) Access to Public Records Act requests since last meeting There were 23 APRA requests received since the last meeting, most of which related to the Raimondo Complaint, all of which were granted within one business day. e.) Financial Disclosure Executive Director Gramitt stated that the May 26, 2020 deadline for filing the 2019 Financial Statement has expired but some filers timely requested a full 60-day extension through June. 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: The Honorable Erin Lynch Prata, a legislator serving in the Rhode Island Senate, a state elected position, requests an advisory opinion regarding her ability, in compliance with the Code of Ethics, to apply for and, if selected, be appointed to a prospective vacancy on the Rhode Island Supreme Court. Senior Staff Attorney D’Arezzo presented the Commission Staff recommendation. The Petitioner was present via video link along with her attorneys, Francis J. Flanagan, Esq. and John D. Lynch, Jr., Esq. Senior Staff Attorney D’Arezzo explained that the instant draft was a consensus opinion prepared by her and Staff Attorney Popova Papa and approved by Executive Director Gramitt. The Petitioner addressed the Commission, thanking the members for their service and time. She stated that she requested the advisory opinion to ensure that the public’s trust and confidence are maintained. Attorney Flanagan addressed the Commission and stated his disagreement with the Staff’s recommendation. He represented that the draft did not answer the Petitioner’s question as to whether a position on the Supreme Court is a “constitutional office.” He argued that the Code of Ethics’ revolving door provisions cannot prohibit a person from seeking a seat on the Supreme Court, which he stated is a “constitutional office.” Attorney Flanagan further argued that the Rhode Island Constitution, Art. X, section 4, sets forth the Governor’s authority to select a person to fill a vacancy on the Supreme Court and that the Ethics Commission may not infringe upon the Governor’s authority to do so, nor on a candidate’s constitutional right to seek a position on that Court. Attorney Lynch queried whether the language “seek or be elected” is prohibitive if there is no election. Commissioner Corrente noted a typographical correction to the citation to “§ 36-14-2(8)(i)” on page 3 of the draft. She inquired why the Commission would not consider the question of whether a position on the Supreme Court is a “constitutional office.” In response, Senior Staff Attorney D’Arezzo explained that, irrespective of the definition of “constitutional office,” which is not a defined term in the Code of Ethics, § 36-14-5(n)(3)’s exception applies to elected offices and, therefore, is inapplicable to the Petitioner. She further stated that if the General Assembly had intended to permit the gubernatorial appointment of judges under that exception it would have utilized the “seeking or accepting appointment” language it employed in § 5(n)(2). Commissioner Corrente noted that the disjunctive “or” is used in § 5(n)(3) and expressed concern with interpreting legislative intent. Senior Staff Attorney D’Arezzo explained that, in the 1993 Advisory Opinion, the Supreme Court noted that § 5(n)’s prohibitions apply to appointed positions and not to positions elected by the general electorate, and it further stated that § 5(n) temporarily limits appointments to the judiciary. Attorney Lynch noted that in Inman the Superior Court addressed a legislator’s ability to accept appointment to a constitutional office. He stated that the exception applies only to the 10 constitutional offices, including the five Supreme Court Justices. Attorney Lynch indicated that, here, the way one seeks such a constitutional office is through the application process. Chair Quinn noted that the interpretation is not that straightforward. In response to Chair Quinn, Attorney Lynch informed that 1994 amendment changed the process from the election of judges by the Grand Committee to the current selection of candidates by the Judicial Nominating Commission (“JNC”). In response to Commissioner Bennett, Legal Counsel DeSimone stated his belief that that § 5(n)(3)’s exception for constitutional offices applies here. He further stated that the position of a Supreme Court justice is a constitutional office. Legal Counsel DeSimone indicated that the issue is how to reconcile the regulatory prohibitions with § 5(n)(3)’s exception and advised that the regulations should be read in harmony with the statute. He emphasized the use of the disjunctive “or” in § 5(n)(3) and stated his legal view that the Petitioner is immediately eligible for appointment to the Supreme Court or election as a general officer. In response to Chair Quinn and Commissioner Antone, Legal Counsel DeSimone explained that the Petitioner would not be immediately eligible for a position on an inferior court created by statute. In response to Commissioner Bennett, Legal Counsel DeSimone stated that the Petitioner’s current position as Chair of the Senate Committee on Judiciary did not affect his opinion, adding that the Petitioner would be required to recuse if her nomination made it to the Senate. Commissioner Murphy expressed concern regarding the Petitioner’s ability to “accept” an appointment under § 5(n)(1), which would render the issue moot. In response to Commissioner Corrente, Attorney Flanagan informed that the JNC considers whether there are issues that would prevent the Governor from selecting a candidate. Executive Director Gramitt addressed the Commission and informed that it is the task of the Ethics Commission, not the JNC, to determine whether a conflict exists under the Code of Ethics. In response to Commissioner Palumbo and Chair Quinn, Legal Counsel DeSimone stated that § 5(n)(3) is an exception to § 5(n)(1)’s prohibition and the use of the disjunctive “or” supports its application here. Commissioner Murphy inquired where language in the Constitution or the Code of Ethics permits the Petitioner to accept this appointment. Legal Counsel DeSimone stated that the exceptions are narrow and the language used is not artful, but it would so state if a person were required to be elected in order to fall under the exception. Attorney Flanagan commented that the statute cannot be construed so as to produce an absurd result, allowing a person to seek a position but not permitting its acceptance. Commissioner Murphy responded that he interpreted that to mean that § 5(n)(3)’s exception did not apply in this case. In response to Commissioner Palumbo, Attorney Lynch stated that the regulatory restrictions are an impingement upon the Governor’s appointment power. In response to Commissioner Bennett, the Petitioner explained that the Senate Committee on Judiciary has no function in the process until it is forwarded a name by the Governor, at which time it vets the candidate by requesting background information and conducting interviews. She noted that Supreme Court candidates must be approved by both the House and Senate, with the House Committee on Judiciary vetting and voting on the candidate first. The Petitioner represented that she would recuse if her name were submitted to the Senate. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was VOTED: To issue an advisory opinion, attached hereto, to The Honorable Erin Lynch Prata, a legislator serving in the Rhode Island Senate, a state elected position. AYES: Marisa A. Quinn and Timothy Murphy. NOES: Kyle P. Palumbo; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; and Emili B. Vaziri. Chair Quinn explained that the draft advisory opinion was not approved due to a lack of five affirmative votes. The next advisory opinion was that of: Richard Thomsen, a member of the Dunn’s Corners Fire District Operating Committee, who is also a volunteer firefighter on the Dunn’s Corners Fire Department, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via audio link. The Petitioner stated that he requested the advisory opinion to be clear and transparent because he intends to run for reelection. In response to Commissioner Bennett, the Petitioner stated that volunteer firefighters receive stipends based on a formula for the number of calls to which they respond. In further response to Commissioner Bennett, the Petitioner informed that he has a cousin on the Operating Committee. In response to Commissioner Palumbo, the Petitioner explained that the budget is compiled by the Treasurer and then submitted to the Operating Committee and, finally, to the taxpayers at a public meeting in July. Staff Attorney Radiches stated that the citizens vote on the budget as a whole. Executive Director Gramitt explained that conflicts of interest might arise in the budgetary process where the Operating Committee may discuss line items that could impact the Fire Department. Staff Attorney Radiches noted that the draft advisory opinion cautions that, as issues arise, the Petitioner may need to recuse or seek further direction from the Commission. Commissioner Bennett advised the Petitioner to be aware of any issues that could result in remuneration to the Fire Department and or himself. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard Thomsen, a member of the Dunn’s Corners Fire District Operating Committee, who is also a volunteer firefighter on the Dunn’s Corners Fire Department. Commissioner Murphy left the meeting at 10:55 a.m. The final advisory opinion was that of: Gregory Maxwell, AIA, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before his own board. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Vaziri, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Gregory Maxwell, AIA, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect. The final order of business was: New Business Proposed for future Commission agendas and general comments from the Commission. There was no new business proposed. At 11:00 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To adjourn Open Session and go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on April 28, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) In re: Raymond Stewart, Jr., Complaint No. 2020-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). c.) In re: Janice McClanaghan, Complaint No. 2019-15, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). d.) In re: Michael Vendetti, Complaint No. 2019-16, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). e.) In re: Chris Mannix, Complaint No. 2019-17, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). f.) In re: Natalie McDonald, Complaint No. 2019-18, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). g.) Annual discussion and review re: Legal Counsel’s contract, pursuant to R.I. Gen. Laws § 42-46-5(a)(1). Voting will occur during Open Session of the next Commission meeting. h.) Litigation update re: 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). i.) Motion to return to Open Session. Commissioner Corrente left the meeting as the Commission convened in Executive Session. At 12:16 p.m., the Commission reconvened in Open Session, with Commissioner Murphy present. Commissioner Palumbo was not present. 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: 1. Unanimously voted (5-0) to approve the minutes of the Executive Session held on April 28, 2020. 2. Unanimously voted (6-0) to consolidate the matters of In re: Janice McClanaghan, Complaint No. 2019-15, In re: Michael Vendetti, Complaint No. 2019-16, In re: Chris Mannix, Complaint No. 2019-17, and In re: Natalie McDonald, Complaint No. 2019-18, for hearing on a Motion to Enlarge Time for Investigation, Second Extension. Unanimously voted (6-0) in the matters of In re: Janice McClanaghan, Complaint No. 2019-15, In re: Michael Vendetti, Complaint No. 2019-16, In re: Chris Mannix, Complaint No. 2019-17, and In re: Natalie McDonald, Complaint No. 2019-18, to enlarge time for investigation for 60 days. 3. Voted (0-5) in the matter of In re: Raymond Stewart, Jr., Complaint No. 2020-1, that there exists probable cause to believe that the Respondent committed a knowing and willful violation of the Code of Ethics. Upon failure of the motion, the Complaint was dismissed. Commissioner Palumbo recused on this matter and was not present for its consideration. A written Decision and Order, explaining the basis for the Commission’s vote, is being prepared by the Commission’s Legal Counsel and will be released along with a copy of the prosecutor’s Investigative Report. 4. Deferred its annual discussion of Legal Counsel’s contract to the next meeting. 5. Received a litigation update in Francis X. Flaherty v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC-2019-5088. 6. Unanimously voted (5-0) to return to Open Session. The next order of business was: Motion to seal minutes of Executive Session held on June 2, 2020. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To seal the minutes of the Executive Session held on June 2, 2020. At 12:21 p.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On March 9, 2020, Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, the Governor issued Executive Order 20-25 on April 15, 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. On May 15, 2020, the Governor issued Executive Order 20-34 which, in part, extended Order 20-25 through June 14, 2020.