Minutes September 11, 2018 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION September 11, 2018 The Rhode Island Ethics Commission held its 15th 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, September 11, 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 M. Therese Antone* Marisa A. Quinn, Vice Chair Arianne Corrente Robert A. Salk, Secretary Timothy Murphy The following Commissioner(s) were not present: J. Douglas Bennett; John D. Lynch, Jr.; and James V. Murray. 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 9:17 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on August 21, 2018. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was VOTED: To approve the minutes of the Open Session held on August 21, 2018. AYES: Arianne Corrente; Timothy Murphy; and Marisa A. Quinn. ABSTENTIONS: Ross Cheit and Robert A. Salk. Executive Session. At 9:18 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on August 21, 2018, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 2. In re: Gayle Corrigan, Complaint No. 2017-11, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). * Commissioner Antone arrived at 9:20 a.m. 3. Motion to return to Open Session. At 9:26 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. Voted (3-0) to approve the minutes of the Executive Session held on August 21, 2018. [Reporter’s Note: The vote was as follows: AYES: Arianne Corrente; Timothy Murphy; and Marisa A. Quinn. ABSTENTIONS: Ross Cheit; M. Therese Antone; and Robert A. Salk.] 2. Voted (6-0) in the matter of In re: Gayle Corrigan, Complaint No. 2017-11, to find that there is probable cause to believe that the Respondent violated the Code of Ethics. The next order of business was: Motion to seal minutes of Executive Session held on September 11, 2018. Upon motion made by Commissioner Antone and duly seconded by Commissioner Quinn, it was unanimously VOTED: To seal the minutes of the Executive Session held on September 11, 2018. 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: William E. Coyle, III, MAI, SREA, a Commercial Real Estate Appraiser in the City of Providence Tax Assessor’s Office, a municipal employee position, who in his private capacity owns a real estate appraisal and consulting company that has an ongoing contract with the Providence Water Supply Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing to perform appraisals under the contract, given that the Water Supply Board is owned by the City of Providence. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. In response to Chair Cheit, the Petitioner explained that he sought an advisory opinion because he would like to respond to bid requests issued by the Providence Water Supply Board, and he is aware that he would be paid for said work with municipal funds. Upon motionmade by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to William E. Coyle, III, MAI, SREA, a Commercial Real Estate Appraiser in the City of Providence Tax Assessor’s Office. The next advisory opinion was that of: John F. Mahoney, a member of the Scituate Town Council, requests an advisory opinion regarding whether the Code of Ethics prohibits his wife from appearing before the Hope Village Overlay Committee, the Scituate Planning Board of Review and/or the Scituate Zoning Board of Review, over which the Town Council has appointing authority, to obtain approval to establish an early learning center on property located in the Town of Scituate. Staff Attorney Giusti presented the Commission Staff recommendation. The Petitioner was present along with his attorney, Andrew Blais, Esq. In response to Chair Cheit, the Petitioner stated that if his wife defaults on her loan, he will have no liability as the mortgage is in her name only. In response to Commissioner Quinn, Staff Attorney Giusti explained that the Petitioner represents that his name will not appear on any of the documents and he has no interest in the business. In response to Commissioner Murphy, Staff Attorney Giusti stated that a family member is not restricted per se under the Code of Ethics from appearing before a municipal body of which the public official is a member or over which his public body has appointing authority. She referenced the advisory opinion cited in the draft and stated that the prohibition under the Code applies to the Petitioner appearing before his own body or any subsidiary bodies. In response to Commissioner Quinn, Staff Attorney Giusti noted that the outcome of the advisory opinion may have been different if the Petitioner had an interest in the business because he would have liability. Commissioner Murphy expressed concern over the mingling and fungibility of funds between the Petitioner and his wife. Chair Cheit noted that issues regarding the mingling of assets do not relate to the Petitioner’s wife’s business and the present issue of whether the Petitioner has an interest in said business. In response to Commissioner Salk, Staff Attorney Giusti stated that it would be hard to monitor the Petitioner’s involvement in private discussions with his fellow councilmembers or members of the subsidiary bodies. She further stated that the Petitioner should remain vigilant as to any possible conflicts that might arise and should follow the recommendations set forth in the advisory opinion. In response to Commissioner Quinn, Executive Director Gramitt explained that if the Petitioner and his wife held joint financial interests in the business, Regulation 5016 would be triggered, prohibiting the Petitioner from authorizing someone else to do what he cannot do. Executive Director Gramitt stated that here, because the Petitioner’s wife is a separate entity and is not subject to the Code of Ethics, the Commission cannot prohibit her from doing business in the Town. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, attached hereto, to John F. Mahoney, a member of the Scituate Town Council. AYES: Ross Cheit; M. Therese Antone; Arianne Corrente; Marisa A. Quinn; and Robert A. Salk. NOES: Timothy Murphy. With five affirmative votes, the advisory opinion issued. The final advisory opinion was that of: Karen D. Pinch, the Town Administrator for the Town of Richmond, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from organizing and hosting an event for the residents of Richmond at which candidates for public office are invited to speak and answer questions posed by the residents. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. The Petitioner stated that the invitation will be extended to everyone on the ballot. She inquired whether the invitation should be extended to any write-in candidates. Chair Cheit responded that it is not for the Commission to decide. In response to Chair Cheit, the Petitioner confirmed that the funds for the event will come from the Elderly Affairs Commission. Upon motion made by Commissioner Murphy and duly seconded, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Karen D. Pinch, the Town Administrator for the Town of Richmond. At 9:59 a.m., Chair Cheit called for a brief recess. At 10:02 a.m., Open Session reconvened. The next order of business was: Discussion and potential vote on 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 investigatory record; and b.) In § 3.11(C)(1) [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. Executive Director Gramitt provided background to the proposed amendments to Commission Regulation 1006. He stated that the language of Rhode Island General Laws § 36-14-12(c)(6) provides that “[n]othing in this section shall be construed to authorize the Commission to make any of its investigatory records public.” He explained that Regulation 1006 provides for the release of the investigative report, which is the Prosecutor’s pleading and does not reflect the view of the Commission. Executive Director Gramitt further explained that in the 2001 Gaschen case, Judge Silverstein of the Rhode Island Superior Court found a conflict between the statute and the regulation. He issued a written decision and ordered the redaction of references to any investigative records in the Investigative Report before it could be released. Executive Director Gramitt informed that the policy of redacting investigative reports continued until the mid-2000s when it was determined that there were grounds for releasing the reports without redaction. Executive Director Gramitt informed that in the 2017 Fonseca matter, although the Prosecutor’s Investigative Report set forth arguments in support of probable cause, the Commission dismissed the complaint. Mr. Fonseca filed a lawsuit against the Commission to prohibit the release of the Investigative Report. He raised the same allegations as those in Gaschen and also sought damages pursuant to a privacy claim. In December 2017, the Commission decided to enter into a court-approved settlement agreement with Mr. Fonseca in which the latter agreed to relinquish his claims against the Commission and the Commission agreed to initiate rulemaking regarding Regulation 1006 and permanently seal the Investigative Report in the Fonseca case. Executive Director Gramitt stated that the Commission began the process of rule-making by holding a pre-rulemaking workshop and issued a notice of proposed rulemaking. Executive Director Gramitt reviewed the comments received at the last meeting from representatives of Common Cause Rhode Island (“Common Cause”) and the American Civil Liberties Union of Rhode Island (“ACLU”). Chair Cheit provided the representatives of Common Cause and the ACLU with the opportunity to make further comment, but no further comments were offered. Executive Director Gramitt outlined the options before the Commission. He explained that the Commission can (1) approve the proposed amendments; (2) approve one amendment and not the other; (3) take no action; or (4) make some variations to the proposed amendments based on the public comments received. He stated that six affirmative votes are required for the Commission to take any of those actions. Discussion ensued. In response to Commissioner Murphy, Executive Director Gramitt explained that, although Gaschen is not a Supreme Court case, Judge Silverstein is a well-respected member of the judiciary and his rationale was well-reasoned. He also explained that the Commission did not appeal that decision. Executive Director Gramitt stated that the decisions not to appeal the Gaschen ruling in 2001 and to cease redacting investigative reports in the mid-2000s were made by the then Executive Director, not the Commission. In response to Commissioner Quinn, Executive Director Gramitt stated that § 36-14-12(c)(6) was enacted in 1990 and prior to that, all documents were sealed and there was a gag order in effect until a lawsuit was filed by the Providence Journal. In response to Commissioner Quinn, Executive Director Gramitt explained that the ACLU’s position is that § 36-14-12(c)(6) does not expressly state that the Commission is prohibited from releasing investigative reports, but Judge Silverstein did not agree with that interpretation. Chair Cheit commented that Judge Licht also did not agree with that interpretation in Fonseca. Executive Director Gramitt noted that the comments made by Mr. Brown on behalf of the ACLU at the last meeting had been considered by the Commission prior to its decision to settle. In response to Chair Cheit, Legal Counsel DeSimone informed that if the Commission adopts the position of the ACLU and does not amend the regulation, the Commission has not violated the terms of the settlement agreement with Mr. Fonseca. Legal Counsel DeSimone explained that the settlement only requires the Commission to initiate rulemaking and does not mandate a particular result. He added that if the Commission does not amend the regulation, there may be another lawsuit in a future case and Gaschen is persuasive, but not precedent. Commissioner Murphy stated that the fear of possible litigation should not drive the Commission’s decision today. Commissioner Quinn stated that she finds the ACLU’s position persuasive. Commissioner Salk stated that he agrees with the amendment requiring the Commission to issue written decisions when it dismisses a complaint at a probable cause hearing. Legal Counsel DeSimone advised that the Commission should make and vote on separate motions. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: Not to amend § 3.11(A) as proposed, with consideration given to: (1) alternative approaches; (2) overlap or duplication with other statutory and regulatory provisions; and (3) significant economic impact on small business. No alternative approach, duplication, or overlap was identified based upon available information. Upon motion made by Commissioner Salk and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adopt the proposed amended language of § 3.11(C)(1), with consideration given to: (1) alternative approaches; (2) overlap or duplication with other statutory and regulatory provisions; and (3) significant economic impact on small business. No alternative approach, duplication, or overlap was identified based upon available information. Executive Director Gramitt requested the Commission’s direction as to whether to continue the release of investigative reports without redaction. Commissioner Quinn stated that the practice will be to continue releasing the reports and Chair Cheit noted that there is no requirement of redaction. Executive Director Gramitt indicated that the next agenda will include discussion of the procedure for releasing investigative reports going forward. He noted that investigative reports will be released in the interim and further stated that the Investigative Report in the Fonseca matter will remain sealed. Chair Cheit extended gratitude on behalf of the Commission to Steven Brown for the ACLU’s comments. 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 six (6) 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 informed that he has negotiated an agreement with the IT vendor, at no cost to the Commission, whereby the 2017 Financial Disclosure Statements will be available online for public access before the November 2018 election. In response to Chair Cheit, Executive Director Gramitt stated that members of the legislature and judiciary are aware that the 2017 Statements will be accessible online. He further stated that the mailing addresses for all 4,500 filers will be redacted. Executive Director Gramitt informed that a security procedure will also be implemented to ensure that only humans, and not robots, can access the data. Commissioner Quinn suggested a communications plan to explain to filers the purpose behind this action. Executive Director Gramitt stated that the Commission can issue a press release when online access rolls out. In response to Chair Cheit, Executive Director Gramitt suggested that the Commission add a notice in the instructions sheet for financial disclosure stating that statements are now accessible online. d.) Personnel Update on filling Staff Attorney IV position. Executive Director Gramitt announced the hiring of Lynne Radiches as the new Staff Attorney IV/Education Coordinator. He stated that she most recently served as a staff attorney for CASA in Family Court. e.) Access to Public Records Act requests since last meeting Seventeen APRA requests were received since the last meeting, two of which were granted within one (1) business day and two of which were granted within 10 business days. In response to Commissioner Corrente, Executive Director Gramitt explained that the moratorium implemented by the Commission is in its third year and applies to complaints filed against declared candidates for elected office within the 90-day period before the general election. Chair Cheit commented that if no complaints are filed the day after the election, then no one was holding back from filing complaints because of the moratorium, and the Commission may wish to revisit the moratorium rule. Commissioner Salk added that there was no rush of complaints filed in early August before the start of the moratorium. The final order of business was: New Business. There was no new business. At 10:37 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Robert A. Salk Secretary  In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 36-14-5016 now corresponds to Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016).  Regulation 36-14-1006 now corresponds to Regulation 520-RICR-00-00-3.11 Finding of Probable Cause (1006).