MISSING TITLE MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION August 21, 2018 The Rhode Island Ethics Commission held its 14th 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, August 21, 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: Marisa A. Quinn, Vice Chair Timothy Murphy J. Douglas Bennett James V. Murray Arianne Corrente The following Commissioner(s) were not present: Ross Cheit, Chair; M. Therese Antone; John D. Lynch, Jr.; and Robert A. Salk, Secretary. 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 9:03 a.m., the Vice Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on July 17, 2018. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was VOTED: To approve the minutes of the Open Session held on July 17, 2018. AYES: J. Douglas Bennett; Arianne Corrente; and Marisa A. Quinn. ABSTENTIONS: Timothy Murphy and James V. Murray. 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 Town of New Shoreham Zoning Board of Review, by and through Donald J. Packer, the New Shoreham Solicitor, requests an advisory opinion regarding whether the Zoning Board of Review may hear and decide an application for a special use permit for a utility facility pursuant to the Rule of Necessity, given that conflicts of interest prevent the Zoning Board of Review from achieving a necessary quorum of five (5) active members. Staff Attorney Popova Papa presented the Commission Staff recommendation. Attorney Donald J. Packer was present on behalf of the Zoning Board of Review. In response to Commissioner Quinn, Attorney Packer stated that this is the first time that there are clear conflicts for the affected Board members. In further response, he informed that he will advise the Board and Ms. Atwater Butcher of the advisory opinion at the Board’s next meeting. Upon motionmade by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to The Town of New Shoreham Zoning Board of Review, by and through Donald J. Packer, the New Shoreham Solicitor. The final advisory opinion was that of: William J. Aiello, a member of the Westerly Town Council, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s discussion and decision-making relative to curb and sidewalk improvements to Church Street, given that his mother and aunt each own property on Church Street. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. He explained to the Commission that the design phase of the project was approved the previous night and he recused out of an abundance of caution. He further explained that the next vote will be on the construction phase for improvements to the sidewalk, which is state-owned property, to comply with the Americans with Disabilities Act. The Petitioner stated that the Town Council does not yet know exactly what improvements will be done. In response to Commissioner Murphy, Staff Attorney Popova Papa informed that under the Public Forum Exception the Petitioner can recuse and then speak as a private citizen during the public comment period as long as he does not receive priority that is not available to any other member of the public. In response to Commissioner Quinn, the Petitioner expressed that he did not understand why he was required to recuse from the design phase of the project. In further response, he informed that he is the only Town Council member who lives on the street. In response to Commissioner Murray, the Petitioner stated that the Town has retained Beta Group to do the design phase of the project and that there will be no taking of or encroachment on private property. He further explained that after the design phase, the project will come back before the Town Council for discussion and opportunity for the public to speak. He noted that the focus of the project is to make the sidewalk passable for people, especially the elderly who are unable to pass now, and children who are falling because of its disrepair. In response to Commissioner Murray, the Petitioner stated that the project applies to all 40 homeowners and no one can opt out. In response to Commissioner Bennett, the Petitioner informed that there could be additional work done that would be more favorable to some property owners than others. In further response, the Petitioner stated that any suggested improvements come from Beta and not from the Town Council. He said that the Town Council can modify and approve Beta’s suggestions. The Petitioner responded to Commissioner Bennett that he understood the advisory opinion but politely disputed the recommendation that he recuse when, as he argued, the Town Council does not yet know what the improvements will be. He added that this is a simple sidewalk project and does not involve property improvements. Commissioner Bennett commented that the project involves safety issues and he does not see any attempt by the Petitioner to benefit. Commissioner Murray concurred, stating that 40 is a significant and definable class number and this is a state project. Commissioner Quinn expressed concern with the Petitioner’s ability to influence or shape the outcome, to which Commissioner Bennett replied that this kind of project would be difficult to influence because it involves a fairly significant property segment. Executive Director Gramitt informed that five (5) affirmative votes are needed to amend the advisory opinion to allow the Petitioner to participate in the Town Council’s votes under the class exception. He explained that a vote of less than five (5) would result in no advisory opinion being issued and no protection for the Petitioner. Upon motionmade by Commissioner Bennett and duly seconded by Commissioner Murray, it was VOTED: To amend the Staff’s recommendation and permit William J. Aiello, a member of the Westerly Town Council, to participate in the Town Council’s discussion and decision-making relative to curb and sidewalk improvements to Church Street, given that his mother and aunt each own property on Church Street. AYES: J. Douglas Bennett and James V. Murray. NOES: Arianne Corrente; Timothy Murphy; and Marisa A. Quinn. Without a unanimous vote, the amended advisory opinion did not issue. Legal Counsel DeSimone advised that the Commission would need to vote on the advisory opinion as drafted. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was VOTED: To issue the advisory opinion as drafted to William J. Aiello, a member of the Westerly Town Council. AYES: Arianne Corrente; Timothy Murphy; and Marisa A. Quinn. NOES: J. Douglas Bennett and James V. Murray. An advisory opinion did not issue due to a lack of five (5) affirmative votes. In response to Commissioner Bennett, Legal Counsel DeSimone advised that the Petitioner does not have the protection of the advisory opinion and should continue to recuse from the Town Council’s discussions and decision-making relative to the sidewalk improvement project. Executive Director Gramitt added that the Petitioner should proceed as if the advisory opinion as drafted had issued. The next order of business was: Discussion and public comment regarding proposed rulemaking. As set forth in a Public Notice dated June 15, 2018 (available on the Ethics Commission website and the RI Secretary of State website), the Ethics Commission is proposing to amend 520-RICR-00-00-3 to: a.) In § 3.11(A) [Finding of Probable Cause (1006)], remove language stating that a copy of the Investigative Report, and any written response thereto, be made public after the probable cause hearing and also add language to expressly state that the Investigative Report, and any written response thereto, shall at all times remain a confidential investigator record; and b.) In § 3.11(C) [Finding of Probable Cause (1006)], add language requiring that when the Ethics Commission dismisses a complaint following a probable cause hearing, it must prepare and issue a public, written Decision and Order explaining the basis for the dismissal. Commissioner Quinn stated that the purpose of the workshop was to receive comments and that no vote would be taken. Legal Counsel DeSimone explained that when the Commission votes at its next meeting on September 11, 2018, the assent of 2/3 of the Commissioners or six (6) affirmative votes is required pursuant to Article III, § 8, of the State Constitution. Executive Director Gramitt provided background to the proposed amendments to Commission Regulation 1006.[1] He explained that pursuant to the terms of the settlement agreement with Antonio Fonseca, the Commission agreed to initiate rulemaking with respect to Regulation 1006. Executive Director Gramitt explained the proposed amendments: (1) the investigative report is not released and is a confidential record; and (2) issuing a written Decision and Order when the Commission dismisses a complaint at a probable cause hearing. In response to Commissioner Murphy, Executive Director Gramitt stated that if the Commission votes to amend the regulation, the investigative report would not be released following an adjudication. He explained that following a probable cause hearing, even if the investigative report remains confidential, the investigative facts would be disclosed through either an informal resolution and settlement agreement, a public document, or a public adjudication. In response to Commissioner Bennett, Executive Director Gramitt informed that if the Commission votes against the proposed amendment, the regulation remains status quo. He stated that public comments are ongoing and may still be received until the next meeting at which they will be presented to the Commission for further discussion and vote. Two members of the public were in attendance to offer comments and written testimony and to answer questions posed by the commissioners: (1) Kevin Flynn, Governing Board member of Common Cause Rhode Island (“Common Cause”) and (2) Steven Brown, Executive Director of American Civil Liberties Union of Rhode Island (“ACLU”). Kevin Flynn was the first sign-in. He stated that Common Cause’s letter had already been submitted to the Commission. He explained that Common Cause supports the proposed amendments. He stated that a dismissal in a given case should include the following components: (1) summary of facts of the complaint and jurisdiction; (2) summary of the Prosecution’s and Respondent’s arguments; and (3) explanation of the rationale for not finding probable cause. In response to Commissioner Bennett, Mr. Flynn stated that two court decisions ruled that the Commission cannot release the investigative report. He noted that Common Cause agrees with the proposed amendments subject to some minor changes. Steven Brown was the next sign-in. He explained that Regulation 1006 presents competing interests. The ACLU supports transparency and the proposed amendment that the Commission issues a written decision when it dismisses a complaint at a probable cause hearing, but the ACLU opposes an amendment making the investigative report confidential. Mr. Brown argued that the current language of the Regulation does not bar the release of the investigative report. He added that if the General Assembly wanted to prohibit the release of the report, it could have done so clearly. He explained that, instead, the language states: “Nothing in this section shall be construed to authorize the Commission to make any of its investigatory records public.” Mr. Brown noted that this language only refers to that section and leaves open the possibility that other laws such as APRA allow the Commission to release the report. He argued that the release of the report is different than the release of the underlying investigative documents. Mr. Brown stated that the ACLU favors transparency and argued that the investigative report relates to the professional conduct of public officials where the public interest is at its highest. He added that if the prosecution consistently makes unfair recommendations, the public has a right to know and the release of the report keeps the prosecution in check. He argued that allowing the Commission to reject the prosecution’s recommendation regarding probable cause but hiding the report creates cynicism of the Commission. Mr. Brown stated that the allegations are already public and the best way to address them is to have a public investigative report and a written decision explaining why the Commission rejected the prosecution’s recommendation. He argued that releasing both the investigative report and a written decision allows the public to see both sides, more fairly vindicates the public official where appropriate, and holds the prosecution accountable. Executive Session. At 10:01 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Murray, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on July 17, 2018, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 2. In re: Harold Carter, III, Complaint No. 2018-3, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. In re: James C. Cournoyer, Complaint No. 2018-10, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 4. In re: William C. Perry, Complaint No. 2018-4, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 5. Motion to return to Open Session. At 11:12 a.m., the Commission reconvened in Open Session. The next order of business was: Motion to seal minutes of Executive Session held on August 21, 2018. Upon motion made by Commissioner Corrente and duly seconded, it was unanimously VOTED: To seal the minutes of the Executive Session held on August 21, 2018. The next order of business was: Report on actions taken in Executive Session. Commissioner Quinn reported that the Commission took the following actions in Executive Session: 1. Voted (3-0) to approve the minutes of the Executive Session held on July 17, 2018. [Reporter’s Note: The vote was as follows: AYES: J. Douglas Bennett; Arianne Corrente; and Marisa A. Quinn. ABSTENTIONS: Timothy Murphy and James V. Murray.] 2. Voted (5-0) in the matter of In re: Harold Carter, III, Complaint No. 2018-3, to find that probable cause does not exist to believe that the Respondent violated the Code of Ethics by participating in the investigation of his brother, Keith Carter, and his niece, Brianna Carter, relative to the January 4, 2018 storm duty and to dismiss the Complaint as to this claim. Voted (3-2) in the matter of In re: Harold Carter, III, Complaint No. 2018-3, to find that probable cause does not exist to believe that the Respondent violated the Code of Ethics by selecting his brother, Keith Carter, for promotion to the position of Deputy Chief of the Pascoag Fire District and to dismiss the Complaint as to this claim. [Reporter’s Note: The vote was as follows: AYES: Arianne Corrente; James V. Murray; and Marisa A. Quinn. NOES: J. Douglas Bennett and Timothy Murphy.] 3. Unanimously voted (5-0) in the matter of In re: James C. Cournoyer, Complaint No. 2018-10, 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 an investigation. 4. Unanimously voted (5-0) in the matter of In re: William C. Perry, Complaint No. 2018-4, to enlarge time for investigation for sixty days. The next order of business was: Director’s Report: Status report and updates. a.) Complaints and investigations There are eight (8) substantive complaints pending. b.) Advisory opinions There are nine (9) advisory opinions pending. c.) Financial Disclosure Discussion of online public access to financial disclosure statements, and the compliance rates for 2017 and candidate filings relative to 2018 elections. Director Gramitt, along with Financial Disclosure Officer Michelle Berg, met with the Commission’s IT vendor for financial disclosure, RI Interactive, to negotiate the development of a portal and system for making financial disclosure statements available online. The Commission is going forward initially with Phase 1 of the project, which will involve creation of a simple search engine to pull up 2017 statements based on the filer’s name. Mailing addresses will be redacted to address privacy concerns. Software safeguards will be included to help prevent automated or robotic downloads of data (scraping). After Phase 1 is up and running, which is optimistically projected to be prior to the November 2018 elections, the Commission may consider Phase 2 which would involve development of a more robust search engine and the ability to generate reports based on specific fields of data (ex: “all legislators’ business interests” or “Newport Zoning Board members real estate holdings”). While preliminary Phase 1 negotiations indicate that the Commission will incur little or no cost at this time, Phase 2 would require budget consideration and may also require an effort to increase or mandate online filing to ensure a complete, searchable data set. Executive Director Gramitt stated that the Staff is finishing financial disclosure for 2017. There are currently 150 public officials who have not filed. The compliance rate for candidates is 95% with 50 not having filed. d.) Regulations Update on proposed rulemaking to amend Regulation 1006. Executive Director Gramitt informed that the Commission will discuss and vote on the proposed amendments to Regulation 1006 at the September 11, 2018 meeting. He added that attendance will be paramount as a 2/3 vote is required to pass any amendments. e.) Legislation Preliminary discussion of the Ethics Commission’s 2019 legislative agenda. Executive Director Gramitt stated that the Staff is working on financial disclosure legislation. He previewed the agenda with Chair Cheit and Vice Chair Quinn and plans to preview to the Commission in October. f.) Personnel Update on filling Staff Attorney IV position. Executive Director Gramitt announced that the position of Staff Attorney IV has been offered and accepted. The new attorney will begin employment on September 4, 2018, and he will introduce her to the Commission at the September 11, 2018 meeting. g.) Access to Public Records Act requests since last meeting Forty-five (45) APRA requests were received since the last meeting, all of which were granted within one (1) business day. The final order of business was: New Business. There was no new business. At 11:23 a.m., upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________Robert A. Salk Secretary