Minutes September 22, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION September 22, 2020 The Rhode Island Ethics Commission remotely conducted its 11th meeting of 2020 in Zoom webinar format at 9:00 a.m. on Tuesday, September 22, 2020, pursuant to the notice published at the Commission offices, 40 Fountain Street, Providence, Rhode Island, and electronically with the Rhode Island Secretary of State.[1] The following Commissioners were present: Marisa A. Quinn, Chair Timothy Murphy Arianne Corrente, Vice Chair Robert A. Salk Kyle P. Palumbo, Secretary Emili B. Vaziri J. Douglas Bennett The following Commissioner was not present: M. Therese Antone. 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 9:02 a.m., the Chairopened the meeting. The first order of business was: Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues. Executive Director Gramitt explained that, after Open Session adjourns, the Commission will convene Executive Session in a separate webinar meeting after which the Commission will return to Open Session to provide a live report on all actions taken in Executive Session. A written report of all actions taken in Executive Session will be published and available on the Commission’s website after the meeting ends. Copies of the written report can be also requested by calling the Commission at (401) 222-3790 or emailing ethics.email@ethics.ri.gov. He informed that the draft advisory opinions that will be presented today are available on the Commission’s website. The next order of business was: Approval of minutes of the Open Session held on August 18, 2020. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To approve the minutes of the Open Session held on August 18, 2020. The next order of business was: Director’s Report: Status report and updates. a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing Executive Director Gramitt explained that the temporary changes in office operations and procedures in response to COVID-19 are being reviewed on a month-to-month basis and will continue through October 10, 2020. Most operations are being conducted via telephone, email, or Zoom. In response to Commission Bennett, Executive Director Gramitt stated that conducting Commission meetings remotely has resulted in more participation and greater attendance by petitioners and Commissioners as well. He further stated that this format has especially benefited Block Island petitioners who would not normally attend or would have to come to the mainland the day before a meeting in order to attend. Executive Director Gramitt noted, however, that remote meetings are only possible pursuant to the Governor’s executive order, which has suspended the Open Meetings Act’s requirement for in person public meetings, and that a legislative amendment ultimately would be required to allow remote meetings. He stated that the current executive order is in place through the Commission’s next meeting on October 6, 2020. In response to Chair Quinn, Executive Director Gramitt informed that persons without online access can dial in via telephone to access the Commission’s meetings. b.) Complaints and investigations pending There are four complaints pending. Executive Director Gramitt explained that the number is low likely due to the pandemic and the pre-election moratorium. He further informed that after an election, the number of complaints generally increases. c.) Advisory opinions pending There are eight advisory opinions pending, with six noticed on today’s meeting agenda. d.) Access to Public Records Act requests since last meeting There were three APRA requests received since the last meeting, all of which were granted within one business day. e.) Financial Disclosure, update on 2019 filings Executive Director Gramitt stated that the pink reminder letters have been mailed to the approximately 300 remaining office holders and candidates who have not yet filed their 2019 financial disclosure statements, providing them with two additional weeks to file. The next order of business was that of: 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 opinionwas that of: James J. Lombardi III, Esq., CPA, the Treasurer and Senior Advisor for the City of Providence; the Chairman of the Donald W. Wyatt Detention Facility Board of Directors; a member of the Rhode Island Board of Accountancy; a member of the North Smithfield School Committee; and, who in his private capacity is an attorney and Certified Public Accountant, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in all of the aforementioned positions. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Commissioner Bennett, the Petitioner stated that he does not anticipate any crossover of issues or conflicts among his positions. In response to Commissioner Palumbo, the Petitioner informed that, as Treasurer, he is a member of the City’s Board of Investments and the City’s Retirement Board and is, at times, asked to appear before the City Council to provide advice on budgetary issues. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to James J. Lombardi III, Esq., CPA, the Treasurer and Senior Advisor for the City of Providence;the Chairman of the Donald W. Wyatt Detention Facility Board of Directors; a member of the Rhode Island Board of Accountancy; a member of the North Smithfield School Committee; and, who in his private capacity is an attorney and Certified Public Accountant. The next advisory opinion was that of: Michael W. Shea, the Superintendent of the Highway Department for the Town of New Shoreham, requests an advisory opinion regarding whether the proposed alternate supervisory chain of command is sufficient to insulate the Petitioner from conflicts of interest relating to the Town Manager’s intent to hire the Petitioner’s son as a laborer for the Highway Department. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link along with Maryanne Crawford, Town Manager, and Shirlyne Gobern, Assistant to the Town Manager. Commissioner Salk expressed some concern over the size of the department and the Petitioner’s son, if hired, reporting to the Highway Supervisor. In response to his concern and to Commissioner Murphy, Ms. Crawford advised that she also serves as the Director of the Department of Public Works and has appointing authority over the Superintendent, the Highway Supervisor, and the laborers. She noted that input from the Superintendent and the Supervisor would usually be sought regarding the hiring of laborers, but here the Petitioner was not involved in the process. Ms. Crawford explained that there were two applicants for the two vacancies that the Town had posted. In response to Chair Quinn, Ms. Crawford stated that the structure of the department is such that the Highway Supervisor generally reports to the Petitioner as the Superintendent, but he will report directly to her on any matters involving the Petitioner’s son. Chair Quinn expressed concern over the process for assessing the performance of laborers and the Highway Supervisor. She noted that her inclination to support the draft opinion relates to Block Island’s small size and its limited pool of applicants. In response to Chair Quinn, Executive Director Gramitt clarified that the Commission has not applied the hardship exception, which is set forth in a different section of the Code of Ethics, in a nepotism context. Executive Director Gramitt referred to the language in the instant draft that prohibits the Petitioner from supervising his son even in this case. Further discussion ensued regarding how the Town could implement a process to insulate the Highway Supervisor from any type of retaliation by the Superintendent should the Highway Supervisor need to report the Superintendent’s son to the Town Manager, as well as how specific the Commission should be in imposing a requirement on the Town to enact such a process. Executive Director Gramitt noted that the Commission does not establish alternate chains of command for public bodies but will consider whether an alternate chain of command proposed by a public body complies with the requirements of the Code of Ethics. Commissioner Murphy stated that the language in the draft opinion is sufficient to caution the Petitioner regarding any issues involving his son and that the Town has been advised to consider a process for insulating the Highway Supervisor from retaliatory action that could result from reporting the Petitioner’s son to the Town Manager. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Salk, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Michael W. Shea, the Superintendent of the Highway Department for the Town of New Shoreham. The next advisory opinion was that of: Christopher Willi, a member of the New Shoreham Town Council, requests an advisory opinion regarding (i) whether, upon recusal, he may attend and speak at public hearings before the Town Council regarding liquor licenses and/or outdoor entertainment licenses in his capacity as a business owner who holds such licenses; and (ii) whether he is prohibited by the Code of Ethics from participating in Town Council discussions and voting relative to moped licenses and operations, given that the owner of the company from which he leases his business property holds and operates two of the five moped licenses approved by the Town Council and issued by the Town. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Christopher Willi, a member of the New Shoreham Town Council. The next advisory opinion was that of: Randall White, a member of the Jamestown Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that an unimproved portion of the lot on which his personal residence is located is within such an area. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Chair Quinn, the Petitioner stated that the amendment to the Jamestown Code of Ordinances, if enacted, will be stricter than the state requirement. Upon motion made by Commissioner Vaziri and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Randall White, a member of the Jamestown Town Council. The next advisory opinion was that of: William J. Piva, Jr., a member of the Jamestown Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that a piece of commercial property for which his employer has the real estate sale listing, and that is presently under contract, is located within such an area. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. The Petitioner addressed the Commission and inquired whether he could participate in the Town Council’s discussions and voting if he changed employers. Staff Attorney Radiches explained that it would depend on whether his business association with Lila Delman Real Estate (“Lila Delman”) was concluded. In response to Commissioner Bennett, the Petitioner stated that the property is not listed with him but with his manager and that he will not receive any renumeration from the sale. In further response, the Petitioner stated that he is both an independent contractor and an employee of Lila Delman because he is paid by Lila Delman, works on its behalf, and utilizes its office. In response to Commissioner Palumbo, Legal Counsel DeSimone informed that even if the Petitioner were solely an independent contractor of Lila Delman, a business association would still exist. The Petitioner next addressed the Commission regarding an issue that arose at the prior night’s Town Council meeting. He informed that he had asked that the matter be continued to a future date, following issuance of his advisory opinion, but discussion of the matter progressed. He noted that he did not participate in any substantive discussion nor did he vote to continue the matter. Executive Director Gramitt replied that the Commission cannot provide binding advice on past conduct but stated that it was appropriate for the Petitioner to ask for a continuance. Commissioner Bennett expressed concern over whether the Petitioner was an independent contractor of Lila Delman and, if so, the Petitioner should not be financially accountable for the company’s transactions. Executive Director Gramitt stated that the conflict for the Petitioner is not based solely on his business association with Lila Delman but also that the listing that is under contract anticipates renovations that are contingent on whether the Town Council votes to adopt the restrictive ordinance such that Lila Delman will be financially impacted by said vote. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Vaziri, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to William J. Piva, Jr., a member of the Jamestown Town Council. The final advisory opinion was that of: Mary E. Meagher, a member of the Jamestown Town Council, who in her private capacity is an architectural designer, requests an advisory opinion regarding whether she may participate in the Town Council’s discussions and voting relative to a proposed amendment to the Jamestown Code of Ordinances pertaining to the height of structures in special flood hazard areas, given that the property of one of her current clients is located within such an area. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Commissioner Bennett, Staff Attorney Popova Papa explained that the Petitioner does not own property in the affected zones and, therefore, there is no financial impact upon her. Staff Attorney Popova Papa further explained that because the Rhode Island Coastal Resources Management Council (“CRMC”) already restricts the height of her client’s structure to a single story, and the CRMC regulations are more restrictive in this case, her client will not be financially impacted by the amendment to the Town’s ordinance. She noted that even if some financial impact inured to the Petitioner’s client, the class exception would likely apply. Commissioner Bennett stated that there are different groups impacted in different ways and disagreed with this Petitioner’s case being analyzed differently than that of William J. Piva, Jr. Upon motion made by Commissioner Palumbo and duly seconded by Commissioner Murphy, it was VOTED: To issue an advisory opinion, attached hereto, to Mary E. Meagher, a member of the Jamestown Town Council, who in her private capacity is an architectural designer. AYES: Marisa A. Quinn; Arianne Corrente; Timothy Murphy; Kyle P. Palumbo; and Robert A. Salk. NOES: J. Douglas Bennett and Emili B. Vaziri. The motion carried. The next order of business was: Discussion and potential vote re: Updates to wording of 2020 Financial Statement Questions and Instructions. Executive Director Gramitt informed that the Staff annually reviews the financial statement and considers whether the questions and instructions accurately capture the requirements of the financial disclosure mandate. He advised that, following issuance of the Superior Court’s decision in Flaherty, the Staff examined Question 9, which requires the disclosure of executive or management positions held in any kind of entity. Executive Director Gramitt noted that any changes should be both minor, to promote consistency from year to year, and concise. He explained that the proposed change to Question 9 would be to add the words “whether paid or unpaid for such service” directly into to the question and the words “even if no compensation is received” to the corresponding instructions. He also outlined a minor change to Question 6, which clarifies that stipends received from public service must be disclosed. Executive Director Gramitt noted that these changes are separate from the Commission’s proposed in-depth review of financial disclosure, which could involve regulatory amendments. He stated that these changes are administrative in nature and do not require a vote by the Commission. He also informed that Commission Investigator Gary Petrarca is presently performing a survey of how other states frame their financial disclosure questions. In response to Commissioner Bennett, Executive Director Gramitt explained that, while the past use of interns to assist with such research projects had raised confidentiality issues, he is working with the University of Rhode Island to develop a stringent confidentiality protocol for interns in their fellowship program. Commissioner Murphy proposed converting Question 9 to require a “yes” or “no” answer, followed by a listing of positions. The Commissioners expressed support for said proposal. Executive Director Gramitt explained that, due to time constraints involved with making more than minor changes to both the printed statements and online filing system, such a change could perhaps be implemented for the 2021 Statement. At 10:42 a.m., Commissioner Vaziri left the meeting. In response to Chair Quinn, Executive Director Gramitt stated that a remote intern would not derive the same benefits and experience as would an intern on site. At 10:43 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on August 18, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) In re: James Kuipers, Complaint No. 2020-4, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). c.) Motion to return to Open Session. At 11:08 a.m., the Commission reconvened in Open Session with Commissioner Vaziri present. The next order of business was: Report on actions taken in Executive Session. Chair Quinn reported that the Commission took the following actions in Executive Session, which information will also be available on the Commission’s website: 1. Voted (6-0) to approve the minutes of the Executive Session held on August 18, 2020. 2. Unanimously voted (7-0) in the matter of In re: James Kuipers, Complaint No. 2020-2, to approve an Informal Resolution and Settlement by which the Respondent, who amended his financial statements, agreed to continue to make the subject disclosures in future statements as applicable. The Commission found that the Respondent’s omissions were not knowing and willful and dismissed the Complaint with prejudice. 3. Unanimously voted (7-0) to return to Open Session. The next order of business was: Motion to seal minutes of Executive Session held on September 22, 2020. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To seal the minutes of the Executive Session held on September 22, 2020. At 11:13 a.m., upon motion made by Commissioner Palumbo and duly seconded by Commissioner Corrente, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On March 9, 2020, Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, on September 9, 2020, the Governor issued Executive Order 20-75, which, in part, continued to relieve public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act.