Minutes July 16, 2019 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION July 16, 2019 The Rhode Island Ethics Commission held its 9th 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, July 16, 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* Kyle P. Palumbo Arianne Corrente, Secretary Emili B. Vaziri The following Commissioner(s) were not present: M. Therese Antone; Timothy Murphy; and 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: 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: Kimberlie J. Rayner-Russell, Assistant Harbor Master for the Town of Westerly, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from serving in the position of Assistant Harbor Master while she and her spouse are members of the Watch Hill Yacht Club. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. *Commissioner Quinn arrived at 9:10 a.m. In response to Chair Cheit, the Petitioner informed that because she sought an opinion because some raised concerns about her being appointed as Assistant Harbor Master by the Town Manager. In response to Commissioner Palumbo, the Petitioner stated that members of the Yacht Club are not shareholders. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Kimberlie J. Rayner-Russell, Assistant Harbor Master for the Town of Westerly. The next advisory opinion was that of: The Honorable Lauren H. Carson, a legislator serving in the Rhode Island House of Representatives, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, through her private employment with the Town of Warren, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Popova Papa noted a correction to the last paragraph on the last page of the draft opinion. She will delete the words “or continue” from the sentence which reads: “There is no indication that the Petitioner will take any official action as a legislator to direct or continue RIDEM grant funds to her private employer.” In response to Commissioner Bennett, the Petitioner explained that a bond question goes through the budgetary process as an article in the budget and passes as a part of the entire budget package. She further explained that authorization for the bond then goes to accounting and, in the instant matter, to DEM to establish regulations for how the funds will be used and to create an RFP process. In further response to Commissioner Bennett, the Petitioner informed that she has no role in lobbying for legislation and neither she nor her fellow legislators have lobbied DEM for bond money. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to The Honorable Lauren H. Carson, a legislator serving in the Rhode Island House of Representatives. The next advisory opinion was that of: Stefan Pryor, the Secretary of Commerce for the State of Rhode Island, who by statute also serves as the Chief Executive Officer for the Rhode Island Commerce Corporation, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving as a member of the Board of Directors of the Rhode Island Chapter of the American Red Cross. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present along with his attorney, Thomas Carlotto, Esq. In response to Commissioner Quinn, Attorney Carlotto stated that the Red Cross does not receive state appropriations. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Stefan Pryor, the Secretary of Commerce for the State of Rhode Island, who by statute also serves as the Chief Executive Officer for the Rhode Island Commerce Corporation. The next advisory opinion was that of: Richard Iannitelli, a member of the Smithfield School Committee, who is also a member of the Smithfield School Building Committee, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the review of a Request for Proposal for, and the selection of, a construction manager for an elementary school reconfiguration project, and from all other Building Committee matters concerning the selected construction manager, given that his daughter is employed by a company that is expected to bid on the project. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Bennett, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard Iannitelli, a member of the Cranston School Committee, who is also a member of the Smithfield School Building Committee. The next advisory opinion was that of: Michael Zarrella, a member of the East Greenwich Town Council, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in Town Council matters relative to a grievance matter filed by an East Greenwich firefighter who was formerly represented by the Petitioner’s business associate. Staff Attorney Popova Papa presented the Commission Staff recommendation. Attorney Andrew Teitz, Esq., Solicitor for the Town of East Greenwich, was present on behalf of the Petitioner, who could not attend. Attorney Teitz explained that the Town Council voted last week, with the Petitioner recusing, to reach a conclusion on the subject matter without the Petitioner’s involvement, rendering the advisory opinion draft moot. Attorney Teitz stated that he did not withdraw the advisory opinion request because the issue could arise again in the future. In response to Chair Cheit, Executive Director Gramitt informed that the Commission could still issue the advisory opinion for educational benefit and guidance or the Commission could decide not to proceed because the issue is moot. Chair Cheit stated that the Commission should consider the opinion. Commissioner Quinn noted a correction to the word “settle” at the bottom of page one of the draft which should read “settlement.” In response to Commissioner Corrente, Attorney Teitz stated that the Town approves all settlement agreements. In response to Commissioner Palumbo, Staff Attorney Popova Papa explained that the Rule of Necessity analysis only applies when multiple members of a board recuse based on individual conflicts, resulting in a lack of quorum for the public body. She stated that here, only one member had a potential conflict. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, amended and attached hereto, to Michael Zarrella, a member of the East Greenwich Town Council. The next advisory opinion was that of: M. Theresa Santos, a member of the Middletown Town Council, requests an advisory opinion regarding whether she may attend and speak at public hearings before the Middletown Planning Board and/or, potentially, the Zoning Board regarding a proposed development of property located across the street from her personal residence. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. In response to Commissioner Palumbo, Staff Attorney Popova Papa informed that the Petitioner would have to recuse if the issue comes before the Town Council, because there is a presumption of a financial impact on her property as an abutter. Chair Cheit noted that it is a rebuttable presumption. In response to Chair Cheit, Executive Director Gramitt explained how the presumption may be rebutted. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to M. Theresa Santos, a member of the Middletown Town Council. The next advisory opinion was that of: Matthew McGeorge, AIA, LEED, AP, 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 his client before his own board. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Matthew McGeorge, AIA, LEED, AP, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect. The final advisory opinion was that of: Daniel O’Neil, a Trooper with the Rhode Island State Police, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits from participating, on his own time and without compensation, as a consultant for a NetFlix movie based on events in his life, including the rescue of a missing teenage boy by him and his K-9 partner, given that his wife will be paid for her recollection of certain events depicted in the movie. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Daniel O’Neil, a Trooper with the Rhode Island State Police, a state employee position. Executive Session. At 10:53 a.m., uponmotion made by Commissioner Corrente and duly seconded by Commissioner Quinn, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on June 18, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Richard J. Fagnant, Complaint No. 2019-5, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: David Lussier, Complaint No. 2019-10, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. Discussion of Executive Director’s annual review held on May 1, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(1). Chair Cheit stated that the Executive Director has waived his statutory right to have the discussion occur in Open Session. 5. 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). 6. Motion to return to Open Session. At 11:00 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. Unanimously voted (6-0) to approve the minutes of the Executive Session held on June 18, 2019. 2. Unanimously voted (6-0) in the matter of In re: Richard J. Fagnant, Complaint No. 2019-5, to find that probable cause does not exist to believe that the Respondent violated the Code of Ethics and to dismiss the Complaint. 3. Voted (5-1) in the matter of In re: David Lussier, Complaint No. 2019-10, to initially determine thatthe 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: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; and Marisa A. Quinn. NOES: Emili B. Vaziri.] 4. Voted (5-1) in the matter of In re: David Lussier, Complaint No. 2019-10, to approve a proposed Informal Resolution and Settlement and impose a civil penalty of $100. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; and Marisa A. Quinn. NOES: Emili B. Vaziri.] 5. Engaged in discussion of Executive Director’s annual review held on May 1, 2019. 6. Received a 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 July 16, 2019. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To seal the minutes of the Executive Session held on July 16, 2019. The next order of business was: Approval of minutes of the Open Session held on June 18, 2019. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Quinn, it was unanimously VOTED: To approve the minutes of the Open Session held on June 18, 2019 The next order of business was: Director’s Report: Status report and updates. a.) Complaints and investigations There are six complaints pending all of which are substantive conflict of interest cases. b.) Advisory opinions There are six advisory opinions pending. c.) Access to Public Records Act requests since last meeting Ten APRA requests were received since the last meeting, all of which were granted within one business day. Executive Director Gramitt noted that online access to financial disclosure statements has had a noticeable impact on reducing the number of APRA requests. He informed that the Staff is in the last stages of the 2018 financial disclosure season. Reminder letters and emails have been distributed and the investigators are contacting solicitors for help with delinquent filers. He stated that the fire districts and charter schools have had the most delinquent filers. He informed that the current compliance rate is 94%. Executive Director Gramitt explained the ongoing efforts that the Staff will make to obtain compliance before complaints will be filed. The next order of business was: New Business and General Comments from the Commission. Commissioner Corrente commented that she would like the Commission to discuss and review financial disclosure statutes and regulations and asked that the matter be noticed on an upcoming agenda. Discussion ensued regarding initiating changes through the legislative process. Executive Director Gramitt stated that he has been identifying statutes and regulations for amendment and proposed the Commission’s August meeting for an initial discussion to establish parameters and timelines. Commissioner Palumbo proposed that the discussion include how the Commission might change the way it handles and categorizes non-filing versus substantive conflict-of-interest cases. Commissioner Bennett noted that doing so may reduce the number of complaints filed. Commissioner Corrente stated that any adjustments in the way these cases are handled and resolved may change the media’s current perception of non-filing complaints. In response to Commissioner Corrente, Executive Director Gramitt stated that the Commission can make changes to its regulations but only the General Assembly can amend the statutes. At 11:16 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