MISSING TITLE MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION September 22, 2015 The Rhode Island Ethics Commission held its 11th meeting of 2015 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 22, 2015, 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 Timothy Murphy M. Therese Antone Marisa A. Quinn Frederick K. Butler Also present were Joseph V. Cavanagh, III, Substitute Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Jason Gramitt, Education Coordinator/Staff Attorney; Staff Attorneys Teresa Giusti and Amy C. Stewart; and Commission Investigators Steven T. Cross, Peter J. Mancini and Gary V. Petrarca. At 9:07 a.m., the Chair opened the meeting. The first order of business was: Recognition of former Commissioner Deborah M. Cerullo SSND. Chair Cheit presented a plaque to former Commissioner Cerullo and thanked her for her years of service to the Commission. Ms. Cerullo thanked the Commissioners and Commission staff and stated that it was an honor to serve on the Commission. The next order of business was: Approval of minutes of the Open Session held on August 18, 2015. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was VOTED: To approve minutes of the Open Session held on August 18, 2015. AYES: Timothy Murphy; Marisa A. Quinn; Ross Cheit. ABSTENTIONS: M. Therese Antone; Frederick K. Butler. 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: Christopher M. Botelho, a Principal Management and Methods Analyst at the Executive Office of Health and Human Services (“EOHHS”), Medicaid Division, requesting an advisory opinion concerning whether the Code of Ethics prohibits him from accepting employment at Lifespan, Miriam Hospital as the Ryan White Grant Program Coordinator. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Gramitt clarified that, while the Petitioner is prohibited from representing his new private employer before EOHHS for one year after leaving state employment, clearly ministerial contacts with EOHHS such as making an informational inquiry, picking up forms, or delivering a package, are not prohibited. Upon motion made by Commissioner Butler and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Christopher M. Botelho, a Principal Management and Methods Analyst at the EOHHS, Medicaid Division. The next advisory opinion was that of: Samuel Bird, RA, a member of the New Shoreham Planning Board, who also served on the Large Capital Asset Strategy Committee, a subcommittee of the Planning Board, requesting an advisory opinion regarding whether the Code of Ethics prohibits him from accepting employment with the Town of New Shoreham as its Facilities Manager. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was present. Chair Cheit thanked the Petitioner for coming to the meeting, given the logistics of traveling here from Block Island. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Samuel Bird, RA, a member of the New Shoreham Planning Board. The next advisory opinion was that of: Scott Millar, the former Administrator of Sustainable Watersheds for the Rhode Island Department of Environmental Management (“DEM”), requesting an advisory opinion regarding whether the Code of Ethics restricts his private employment at Grow Smart Rhode Island, a private nonprofit organization, in the year following his retirement from public employment. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Butler and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Scott Millar, the former Administrator of Sustainable Watersheds for DEM. The next advisory opinion was that of: Matthew Vesey, a probation and parole officer at the Rhode Island Department of Corrections, requesting an advisory opinion regarding whether the Code of Ethics prohibits him from working in his private capacity as a domestic violence class facilitator at Vantage Point, Inc. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Matthew Vesey, a probation and parole officer at the Rhode Island Department of Corrections. 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, requesting an advisory opinion regarding whether she qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before her own board to help her clients obtain a Certificate of Appropriateness. Staff Attorney Stewart presented the Commission Staff recommendation. The Petitioner was not present. Commissioner Murphy stated that he appreciated the explanation in the opinion regarding the rationale behind the hardship exception for historic architects in General Commission Advisory 2010-1. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, 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. The next order of business was: Director’s Report. Executive Director Willever reported that there were seven (7) complaints and four (4) advisory opinions pending. He stated that eight (8) APRA requests were granted since the last meeting, all of which were completed within one (1) business day. The next order of business was: Discussion of a potential vote re: Proposed Schedule of Fines and Penalties for the Informal Disposition of Qualifying Financial Disclosure Complaints Staff Attorney Gramitt stated that at its July 21, 2015 meeting the Commission asked the staff to present it with a revised Schedule of Fines and Penalties (“Schedule”) for complaints that are initiated by the staff for the failure to timely file annual financial disclosure statements. He stated that before the Commission today is both the existing Schedule from 2003 and a proposed Schedule. Staff Attorney Gramitt summarized the implementation and application of the existing Schedule, which authorized the staff to settle non-filing complaints according to the Schedule without the Commission’s approval. He stated that the 2003 Schedule authorized settlement for $500 initially and thereafter for $550-$1000 prior to a probable cause hearing, and for $750-$1500 after a probable cause hearing. He further stated that the 2003 Schedule authorized the staff to reduce the penalty based upon a finding of unique circumstances, such as financial hardship. He added that the 2003 Schedule was implemented at a time when the financial disclosure compliance rate was low. However, he stated that as of today, the Commission has a compliance rate of 98% for the 2014 Financial Disclosure Statement. Staff Attorney Gramitt introduced the staff’s proposed Schedule, which would similarly allow Commission staff to settle non-filing complaints without receiving prior approval from the Commission. He explained that this new Schedule would only apply to the informal disposition of “qualifying complaints,” which is defined as “complaints initiated by Commission staff that solely allege the late filing, or non-filing, of a financial disclosure statement for a single calendar year.” He stated the new Schedule has two different categories of penalties that have both been left blank so the Commission can determine the amounts. He explained that, within ten days after the filing of a qualifying complaint, it may be settled for the payment of a lower penalty, such as $200 and, thereafter, a qualifying complaint may be settled for a higher penalty, such as $500. He informed that settlement pursuant to the Schedule, at any time, requires: 1) filing any delinquent financial disclosure statement(s); 2) executing a “Consent to Finding of Violation” form; and 3) paying a civil penalty. He explained that the staff retains the discretion to make downward departures in the amount of the penalty based upon a finding of unique circumstances. He further noted that the new Schedule also requires the Commission to be regularly notified of all informal dispositions made in accordance with the Schedule. Discussion ensued. In response to Chair Cheit, Staff Attorney Gramitt stated that the new Schedule removed the distinctions for pre- and post-probable cause because a historical review of non-filing complaints for the past ten years showed that most cases were settled for $500 or $550. He further stated that he is not sure if more cases would have settled if the fine was lower, however, it was worth making a change to see if there would be such an effect. Commissioner Butler questioned whether, under the new Schedule, the staff is required to settle a complaint even if there were egregious circumstances. Staff Attorney Gramitt noted that, under the new Schedule, a Respondent has an absolute right to settle within the ten business day period if he or she meets all of the requirements but, thereafter, the Schedule leaves it to the prosecutor’s discretion to settle or bring the case before the Commission. Chair Cheit asked if the staff would prefer to have a monetary range instead of a fixed amount for a penalty. Staff Attorney Gramitt responded that the historical review revealed that, in practice, Commission prosecutors have stuck to the lower end of the range. Chair Cheit noted that the marginal increase in compliance from 98% to 100% is often not worth the cost of the necessary efforts. However, he stated that he was pleased that the staff’s focus is on compliance. He stated that, in the new Schedule, he is in favor of setting the initial penalty at $100 and after ten business days it could increase to $500. Commissioner Antone stated that compliance is the goal and the lower initial penalty could be a quick way for people to resolve these complaints. In response to Commissioner Murphy, Staff Attorney Gramitt clarified that this schedule would not apply to complaints filed by members of the public, even if those complaints involved the failure to file a financial statement or the failure to disclose certain information on the financial statement. Commissioner Butler stated that he was also comfortable setting the penalties in the new Schedule at $100 and $500 respectively. Commissioner Quinn stated that she was inclined to go higher but she agreed to set the initial penalty at $100 and review the results of these changes to the Schedule in a year. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adopt the Schedule of Fines and Penalties for the Informal Disposition of Qualifying Financial Disclosure Complaints with the penalties set at $100 and $500 respectively; and to review the Schedule again within a year to assess the results of these changes. The next order of business was: Executive Session. At 10:15 a.m., upon motion 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 August 18, 2015. 2. In re: Joseph J. Nicholson, Jr., Complaint No. 2015-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. In re: Joseph J. Nicholson, Jr., Complaint No. 2015-2, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 4. In re: Charles E. Millard, Complaint No. 2015-6, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 5. In re: Donald J. Lally, Jr., Complaint No. 2015-7, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). The Commission reconvened in Open Session at approximately 10:45 a.m. Upon motion made by Commissioner Butler and duly seconded by Commissioner Murphy, it was unanimously VOTED: To seal the minutes of the Executive Session held on September 22, 2015. 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 to approve the minutes of the Executive Session held on August 18, 2015. [Reporter’s note – The vote was as follows: AYES: Timothy Murphy; Marisa A. Quinn; Ross Cheit. ABSTENTIONS: M. Therese Antone; Frederick K. Butler.] 2. Unanimously voted (5-0) to approve an Informal Resolution & Settlement in the consolidated matters of In re: Joseph J. Nicholson, Jr., Complaint Nos. 2015-1 & 2015-2. 3. Unanimously voted (5-0) to initially determine that the facts alleged in In re: Charles E. Millard, Complaint No. 2015-6, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and authorized an investigation. [Reporter’s note: Substitute Legal Counsel Cavanagh recused from participating in this matter and was not present in the meeting room while it was considered.] 4. Unanimously voted (5-0) to initially determine that the facts alleged in In re: Donald J. Lally, Jr., Complaint No. 2015-7, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and authorized an investigation. The final order of business was: New Business Chair Cheit congratulated Commissioner Quinn on her re-appointment by Governor Gina M. Raimondo to serve a full five-year term on the Commission. He noted that the election of officers would be on the agenda at the next meeting. He stated that he was willing to continue to serve and that Commissioner Lynch has also indicated a willingness to continue. He stated that he had not had a chance to speak to Commissioner Salk about continuing as Secretary. Finally, he thanked Attorney Cavanagh for serving as legal counsel today on behalf of Edmund L. Alves, Jr., who could not attend today’s meeting. At 10:48 a.m., upon motion made by Commissioner Butler and duly seconded by Commissioner Quinn, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ Robert A. Salk Secretary