Minutes June 19, 2018

MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION

June 19, 2018

The Rhode Island Ethics Commission held its 12th meeting of 2018 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, June 19, 2018, 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                                Arianne Corrente

Robert A. Salk, Secretary                   John D. Lynch, Jr.*                            

M. Therese Antone                             Timothy Murphy

J. Douglas Bennett                             James V. Murray

The following Commissioner(s) were not present: Marisa A. Quinn, Vice Chair. 

Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Jason Gramitt, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; 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 June 5, 2018.

Upon motion made by Commissioner Murray and duly seconded by Commissioner Murphy, it was

VOTED:  To approve the minutes of the Open Session held on June 5, 2018.

AYES:  J. Douglas Bennett; Arianne Corrente; Timothy Murphy; James V. Murray; and Ross Cheit.

ABSTENTIONS:  M. Therese Antone and 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:

Pamela Sherrill, a member of the Rhode Island Scenic Roadways Board, a state appointed position, who also serves as the Executive Director of the East Providence Waterfront Special Development District Commission, a quasi-public state agency, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Scenic Roadways Board’s discussions and voting to approve aesthetic developments along Veterans Memorial Parkway, given that the East Providence Waterfront Special Development District Commission is responsible for approving structural developments in areas that abut Veterans Memorial Parkway.

Staff Attorney Teresa Giusti presented the Commission Staff recommendation.  The Petitioner was present.  In response to Commissioner Bennett, the Petitioner stated that she receives compensation for her service as Executive Director.  In further response to Commissioner Bennett, she explained that she had recused from University Orthopedics’ development application because it also went before the Department of Transportation and the East Providence Waterfront Commission.  Upon motionmade by Commissioner Antone and duly seconded by Commissioner Murray, it was unanimously

VOTED:  To issue an advisory opinion, attached hereto, to Pamela Sherrill, a member of the Rhode Island Scenic Roadways Board, a state appointed position, who also serves as the Executive Director of the East Providence Waterfront Special Development District Commission, a quasi-public state agency. 

The next advisory opinion was that of:

The Honorable Adam J. Satchell, a legislator serving in the Rhode Island Senate, requests an advisory opinion regarding whether he may participate in the Senate’s discussions and voting relative to legislation that would provide for a stipend to be paid to all retired teachers or their beneficiaries during years where no cost of living adjustments are applied to teachers’ retirement benefits, given that he is a public school teacher who is vested in the Employees’ Retirement System of Rhode Island. 

Executive Director Gramitt presented the Commission Staff recommendation.  The Petitioner was not present.  John A. Pagliarini, Esq., was present on behalf of the Petitioner. 

*Commissioner Lynch arrived at 9:11 a.m.

Attorney Pagliarini stated that Senator Satchell sought this advisory opinion out of an abundance of caution.  In response to Chair Cheit, Attorney Pagliarini informed that he provides legal advice to legislators on a daily basis, but he referred the Senator to the Commission for an advisory opinion.  In response to Commissioner Bennett, Attorney Pagliarini stated that he did not believe that Senator Satchell either sponsored or co-sponsored the subject bill.  Attorney Pagliarini responded to Commissioner Murphy that there are at least seven teachers and their spouses in the Senate.  Upon motionmade by Commissioner Corrente and duly seconded by Commissioner Antone, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to The Honorable Adam J. Satchell, a legislator serving in the Rhode Island Senate.

The next advisory opinion was that of:

Alberto LaGreca, a member of the Smithfield Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and decision-making relative to a potential amendment to a town ordinance that affords a tax freeze to Smithfield senior citizens, given that he and his spouse qualify for and receive the tax freeze.

Staff Attorney Popova Papa presented the Commission Staff recommendation.  The Petitioner was present.  In response to Commissioner Bennett, the Petitioner stated that he did not sponsor or co-sponsor the amendment.  Upon motionmade by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously

VOTED:  To issue an advisory opinion, attached hereto, to Alberto LaGreca, a member of the Smithfield Town Council. 

The next advisory opinion was that of:

Maxine Cavanagh, a member of the Smithfield Town Council, requests an advisory opinion regarding whether she may participate in the Town Council’s discussions and decision-making relative to a potential amendment to a town ordinance that affords a tax freeze to Smithfield senior citizens, given that she and her spouse qualify for and receive the tax freeze.

Staff Attorney Popova Papa presented the Commission Staff recommendation.  The Petitioner was present.  Staff Attorney Popova Papa explained that this advisory opinion involved facts similar to those in the prior advisory opinion with the only exception being that this Petitioner and her spouse have qualified for and received a tax freeze since 2007.  In response to Commissioner Bennett, the Petitioner stated that she was neither a sponsor nor a co-sponsor of the amendment.  Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously

VOTED:  To issue an advisory opinion, attached hereto, to Maxine Cavanagh, a member of the Smithfield Town Council. 

The final advisory opinion was that of:

Gail Hallock Cyr, AIA, a member of the North Kingstown Historic District Commission, who in her private capacity is an architect, requests 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 Giusti presented the Commission Staff recommendation.  The Petitioner was present.  Upon motion made by Commissioner Murphy and duly seconded by Commissioner Lynch, it was unanimously

VOTED:  To issue an advisory opinion, attached hereto, to Gail Hallock Cyr, AIA, a member of the North Kingstown Historic District Commission. 

Executive Session.

At 9:28 a.m., uponmotion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously

VOTED:  To go into Executive Session, to wit:

1.      Motion to approve the minutes of the Executive Session held on June 5, 2018, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4).

2.      In re: Nicholas J. Izzi, Complaint No. 2018-7, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4).

3.      Annual discussion and review regarding Legal Counsel’s contract, pursuant to R.I. Gen. Laws § 42-46-5(a)(1).

4.      Motion to return to Open Session.

The Commission reconvened in Open Session at 9:54 a.m.

The next order of business was:

Motion to seal minutes of Executive Session held on June 19, 2018.

Upon motion made by Commissioner Murray and duly seconded by Commissioner Murphy, it was unanimously

VOTED:  To seal the minutes of the Executive Session held on June 19, 2018.

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 June 5, 2018.

[Reporter’s Note:  The vote was as follows:

AYES: J. Douglas Bennett; Arianne Corrente; Timothy Murphy; James V. Murray; and Ross Cheit.

ABSTENTIONS: M. Therese Antone and Robert A. Salk. 

2.      Voted (7-0) in the matter of In re: Nicholas J. Izzi, Complaint No. 2018-7, to approve a proposed Informal Resolution and Settlement, as amended.

[Reporter’s Note: The vote was as follows:

AYES:  M. Therese Antone; J. Douglas Bennett; Arianne Corrente; Timothy Murphy; James V. Murray; Robert A. Salk; and Ross Cheit.

RECUSALS:  John D. Lynch, Jr.]

3.      Annual discussion and review re: Legal Counsel’s contract, pursuant to R.I. Gen. Laws § 42-46-5(a)(1).

The next order of business was:

Annual discussion and potential vote re: Legal Counsel’s contract.

Commissioner Bennett commented that Legal Counsel DeSimone has done well in his brief time as the Commission’s Legal Counsel.  Commissioner Murphy stated that Legal Counsel DeSimone is approachable to the members of the Commission.  Upon motion made by Commissioner Antone and duly seconded by Commissioner Salk, it was unanimously

VOTED: To renew Legal Counsel Herbert F. DeSimone’s contract.

The next order of business was:

Director’s Report: Status report and updates.

Executive Director Gramitt informed that:

a.)    Complaints and investigations

There are eight (8) substantive complaints pending. 

b.)    Advisory opinions

There are eight (8) advisory opinions pending. 

c.)    Financial Disclosure

455 reminder letters were mailed to those who have not yet filed their 2017 Financial Disclosure Statements.  Thus far, the Commission Staff has received almost 3,600 filings which translate into an 88% compliance rate.  The percentage of online filers remains at 85%.

d.)    Regulations

Update on proposed rulemaking to amend Regulation 1006.

The Commission Staff has filed notice of proposed rulemaking regarding Regulation 1006 for which a public hearing will be held at the August 21, 2018 Commission meeting.  Notice has been posted on the Commission’s and Secretary of State’s websites.  Emails soliciting public comments will be sent. 

The Administrative Procedures Act was amended in 2016 and now requires that the public comment period run for five (5) days from the date of the public hearing before a vote may be taken.  A vote on rulemaking with respect to Regulation 1006 will occur in September.  In response to Commissioner Murphy, Executive Director Gramitt stated that an email address has been designated for public comments to be submitted to the Commission.

He explained that the Secretary of State’s Office has directed the Commission to submit one proposal that may include all three options.

e.)    Legislation

Status of 2018 H 8042, an Act to require online access to all financial disclosure statements. 

The bill has been assigned to the Senate Judiciary for hearing and it appears to be on track for passage.  Executive Director Gramitt stated that he discussed the time element of the bill with Senate Staff, explaining the difficulty for the Commission to make the statements available online immediately after passage.  He informed that he will send an email notification if the bill passes. 

f.)     Personnel

Update on filling Staff Attorney IV position.

The process for hiring a Staff Attorney IV is underway.

g.)    Access to Public Records Act requests since last meeting

Eight (8) APRA requests were received since the last meeting, all of which were granted within one (1) business day.

Chair Cheit informed that the Commission’s next meeting is July17, 2018, and there is a meeting scheduled for August 21, 2018.  He stated that Vice Chair Quinn will chair the August 21, 2018 meeting as he will not be in attendance. 

In response to Commissioner Murphy, Executive Director Gramitt stated that the three options with regard to Regulation 1006 are as follows: (1) delete the language regarding the investigative report as a public document; (2) delete the language regarding the investigative report as a public document and add clear language that the investigative report remains confidential; and (3) issue a written decision and order any time a complaint is dismissed by the Commission at a probable cause hearing.  He explained that these three options are compatible with each other and can be incorporated into one omnibus rule, if the Commission chooses to do so.

Executive Director Gramitt requested that if they are aware that they will not be able to attend either the July or August meeting, Commissioners inform the Staff in advance given that there are only those two meetings scheduled for the summer.

Chair Cheit expressed concern over the Legislature micromanaging the Commission if the House bill passes.  He noted that certain issues, such as whether there will be search functions to facilitate the online access of financial disclosure statements, should be left for the Commission Staff to address and handle. 

The final order of business was:

New Business.

Chair Cheit raised a concern regarding the use of cell phones during public meetings.  Executive Director Gramitt commented that the issue has been raised on social media generally with respect to board meetings at which members use cell phones excessively.  He stated that this has not been an issue at Commission meetings.  In the complaint context, Commissioners are not permitted to examine extra-judicial materials without sharing such information with both sides in a matter as this would violate due process.  Chair Cheit commented that Commissioners also should not text each other during meetings as this would constitute private communications.  Legal Counsel DeSimone added that private communications would violate the Open Meetings Act. 

In response to Chair Cheit, John Marion of Common Cause Rhode Island stated that a news article was published that addressed the issue of preventing cell phone usage during public meetings.  He noted that he has seen texting occur during other public bodies’ meetings, raising issues relating to rolling quorums and whether said text messages are subject to APRA. 

Chair Cheit informed that at Commission meetings many Commissioners are reviewing electronically the meeting materials that have been provided in the binders. 

At 10:13 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously

VOTED: To adjourn.  

Respectfully submitted,

______________________________

Robert A. Salk

Secretary