Minutes October 29, 2019 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION October 29, 2019 The Rhode Island Ethics Commission held its 13th 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, October 29, 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 Kyle P. Palumbo Marisa A. Quinn, Vice Chair Robert A. Salk Arianne Corrente, Secretary Emili B. Vaziri* J. Douglas Bennett The following Commissioner(s) were not present: M. Therese Antone and Timothy Murphy. 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 Attorney Teresa Giusti; and Commission Investigators Steven T. Cross; Peter J. Mancini; and Gary V. Petrarca. At 9:16 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on October 8, 2019. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Palumbo, it was VOTED: To approve the minutes of the Open Session held on October 8, 2019. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; and Marisa A. Quinn. ABSTENTIONS: Robert A. Salk. 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: Marc A. Tillson, the Building Official for the Town of New Shoreham, who in his private capacity owns and operates a house watch service there, requests an advisory opinion regarding the application of the Code of Ethics to his participation in matters before his agency, given his business associations with persons who may be involved with, or impacted by, such matters. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Radiches noted that this matter had originally been scheduled for the September 24, 2019 Commission meeting but was continued to allow for the Petitioner to appear and address the Commission’s questions and concerns. *Commissioner Vaziri arrived at 9:20 a.m. In response to Commissioner Palumbo, the Petitioner explained that the Building Official is a law enforcement official under the State Building Code and a zoning official has enforcement authority under the local zoning ordinance. In response to Commissioner Salk, the Petitioner stated that he has previously had to terminate a relationship with a customer due to a conflict and then later resumed said relationship. In response to Commissioner Bennett, the Petitioner explained that the homes for which he provides watch services are owned by people of wealth and are mostly summer homes. He further explained that if he finds a problem or issue with the home while he is monitoring it, he contacts the homeowner who then contacts a vendor to fix the issue. In response to Commissioner Corrente, the Petitioner informed that if an issue involves a health and safety concern, he notifies the homeowner that, as the Town Building Official, he will not be able to conduct the home inspection or issue any permits for repair work. He further informed that if he has a conflict and must recuse from inspecting a home, under the State Building Code, a licensed vendor must provide inspection reports to the building department. In response to Chair Cheit, the Petitioner explained that, although his service agreement contains a provision that he and the client can agree to the nature and cost of any additional repair services, he has never done so and represented that he will delete that language from the contract. In response to Commissioner Quinn, the Petitioner stated that he explains to his clients in advance that he is the Building Official and that he may have to recuse from certain work if a conflict arises. Commissioner Quinn suggested that the Petitioner include language regarding potential conflicts in the agreement, and the Petitioner agreed. In further response to Commissioner Quinn, the Petitioner explained that he had to testify at a recent hearing involving a private property dispute and some of the zoning board members expressed concern over his private employment, prompting him to seek this advisory opinion. In response to Commissioner Quinn and Chair Cheit, the Petitioner stated that his administrative assistant performs ministerial duties. In response to Commissioner Palumbo, the Petitioner informed that, in his capacity as the Building Official, he handles complaints by going to the subject home, investigating the alleged infraction, and issuing either an advisory letter or a notice of violation to the homeowner. In response to Commissioner Bennett, the Petitioner informed that, in addition to his company, there are 2 large home watch service companies on Block Island, each servicing about 200 homes, a couple of mid-sized companies, and some builders who also provide watch services for the houses they construct. He further informed that about 800 summer homes on Block Island have watch services. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, attached hereto, to Marc A. Tillson, the Building Official for the Town of New Shoreham, who in his private capacity owns and operates a house watch service there. AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Marisa A. Quinn; and Robert A. Salk. NOES: Kyle P. Palumbo and Emili B. Vaziri. The next advisory opinion was that of: Richard Epstein, the Vice-Chairman of the Rhode Island Real Estate Commission, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon him, given that he is privately employed by Residential Properties Ltd., a real estate company which is expected to apply to the Real Estate Commission for a license to open and operate a real estate school. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. Staff Attorney Radiches explained that this and the next advisory opinion for the same Petitioner were prepared by Staff Attorney Popova Papa and had been scheduled for the Commission’s October 8, 2019 meeting. She further explained that they were continued to today’s meeting to allow for the Petitioner to attend and address the Commission’s questions and concerns. The Petitioner addressed the Commission and explained his real estate background and experience. He stated that he has been involved in real estate for 20 years. He further stated that his employer, Residential Properties Ltd. (“Residential”), is seeking to open a real estate licensing school and he sought an advisory opinion as to what limitations the Code of Ethics places upon him. In response to Commissioner Corrente, Executive Director Gramitt stated that the Commission has never defined “proximity.” He explained that the analysis centers on whether the Petitioner’s employer will be financially impacted by a decision of the Real Estate Commission, and one factor in the analysis can be the proximity of competitors. In response to Commissioner Corrente, the Petitioner stated that people choose which school to attend based on reputation. In response to Commissioner Quinn, the Petitioner stated that he was not sure of the costs as different schools may charge and others may not. He further stated that there are 64 schools throughout Rhode Island and 183 instructors. Commissioner Bennett noted that all real estate agents are competitors of each other in Rhode Island. He added that, based on his real estate knowledge, he is comfortable with the staff’s recommendation. Upon motion made by Commissioner Salk and duly seconded by Commissioner Bennett, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard Epstein, the Vice-Chairman of the Rhode Island Real Estate Commission. The next advisory opinion was that of: Richard Epstein, the Vice-Chairman of the Rhode Island Real Estate Commission, requests an advisory opinion regarding: 1) whether the Code of Ethics prohibits him from becoming a qualified school instructor, given that his School Instructor Application, along with his resume, will be reviewed by the Rhode Island Real Estate Commission as part of his private employer’s Real Estate Course Application; and 2) what restrictions, if any, the Code of Ethics places on him regarding his participation in the Real Estate Commission’s review and/or approval of Real Estate Course Applications submitted by other entities. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. The Petitioner addressed the Commission and explained that there is no financial benefit to him if he becomes an instructor as he will not be paid or receive any compensation. Commissioner Quinn expressed concern over whether the draft opinion’s guidance was clear to the Petitioner as to potential issues with competitors. She stated that the proximity analysis does not seem to help here. The Petitioner agreed with Commissioner Quinn, explaining that there is no cap as to the number of schools. In response to Chair Cheit, Executive Director Gramitt explained that the draft opinion can be amended to delete the proximity language and to state that the Petitioner is not required to recuse from reviewing and approving applications submitted by other schools that are not in direct competition with the Petitioner’s employer such that a decision by the Real Estate Commission would have a direct financial impact on his employer. Executive Director Gramitt stated that the Commission can only provide general guidance at this time given the facts presented by the Petitioner. In response to Commissioner Vaziri, the Petitioner stated that the Real Estate Commission has never denied an application to open and operate a real estate school. He further stated that applications for instructors or courses have been denied, but not for schools. In response to Chair Cheit, the Petitioner explained that an application to open a school would be rejected if there was no authorized agent. In further response to Chair Cheit, the Petitioner informed that the Real Estate Commission has a basic checklist that it follows and does not exercise discretion when reviewing applications. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Richard Epstein, the Vice-Chairman of the Rhode Island Real Estate Commission. The final advisory opinion was that of: Julie Carroccia, a member of the Charlestown Town Council, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in discussions and decision-making related to litigation which challenges a state law affecting certified school teachers and municipal employees, given that her spouse is a public school teacher. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. In response to Chair Cheit, the Petitioner explained that she recused at the last Town Council meeting. She further explained that one of the other council members did not agree with her recusal, prompting her to seek this advisory opinion. In further response to Chair Cheit, the Petitioner stated that her spouse will not be impacted by any challenge to the law because he is 64 years old. The Petitioner also responded that the Town Council’s vote to proceed with the litigation was unanimous. In response to Commissioner Bennett, Staff Attorney Radiches stated that Charlestown aligned itself with about 20 other schools statewide to challenge the law which would impact 11,000 teachers across the state. In response to Chair Cheit, the Petitioner informed that the towns are splitting the legal costs. Commissioner Bennett expressed concern over the potential disclosure of confidential matters discussed in the Town Council’s executive sessions. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Julie Carroccia, a member of the Charlestown Town Council. Executive Session. At 10:23 a.m., uponmotion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on October 8, 2019, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 2. In re: Peter Drouin, Complaint No. 2019-8, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 3. In re: Janice McClanaghan, Complaint No. 2019-15, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 4. In re: Michael Vendetti, Complaint No. 2019-16, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 5. In re: Chris Mannix, Complaint No. 2019-17, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 6. In re: Natalie McDonald, Complaint No. 2019-18, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 7. In re: Sarah Markey, Complaint No. 2019-9, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). 8. 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). 9. Motion to return to Open Session. At 11:37 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 (6-0) to approve the minutes of the Executive Session held on October 8, 2019. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; Marisa A. Quinn; and Emili B. Vaziri. ABSTENTIONS: Robert A. Salk.] 2. Unanimously voted (7-0) in the matter of In re: Janice McClanaghan, Complaint No. 2019-15, to initially determine that the Complaint states facts as to Counts I, III, and V that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. Voted (4-3) in the matter of In re: Janice McClanaghan, Complaint No. 2019-15, to initially determine that the Complaint states facts as to Count IV that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; Arianne Corrente; Marisa A. Quinn; and Robert A. Salk. NOES: J. Douglas Bennett; Kyle P. Palumbo; and Emili B. Vaziri.] Unanimously voted (7-0) in the matter of In re: Janice McClanaghan, Complaint No. 2019-15, to initially determine that the Complaint fails to state facts as to Count II that are sufficient to constitute a violation of the Code of Ethics and to dismiss this allegation of the Complaint. 3. Unanimously voted (7-0) in the matter of In re: Michael Vendetti, Complaint No. 2019-16, to initially determine that the Complaint states facts as to Counts I, III, and V that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. Voted (4-3) in the matter of In re: Michael Vendetti, Complaint No. 2019-16, to initially determine that the Complaint states facts as to Count IV that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. [Reporter’s Note: The vote was as follows: AYES: Ross Cheit; Arianne Corrente; Marisa A. Quinn; and Robert A. Salk. NOES: J. Douglas Bennett; Kyle P. Palumbo; and Emili B. Vaziri.] Unanimously voted (7-0) in the matter of In re: Michael Vendetti, Complaint No. 2019-16, to initially determine that the Complaint fails to state facts as to Count II that are sufficient to constitute a violation of the Code of Ethics and to dismiss this allegation of the Complaint. 4. Unanimously voted (7-0) in the matter of In re: Chris Mannix, Complaint No. 2019-17, to initially determine that the Complaint states facts as to Counts I and III that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. Unanimously voted (7-0) in the matter of In re: Chris Mannix, Complaint No. 2019-17, to initially determine that the Complaint fails to state facts as to Count II that are sufficient to constitute a violation of the Code of Ethics and to dismiss this allegation of the Complaint. 5. Unanimously voted (7-0) in the matter of In re: Natalie McDonald, Complaint No. 2019-18, to initially determine that the Complaint states facts as to Counts II, IV, and V that, if true, are sufficient to constitute a violation of the Code of Ethics and to authorize an investigation. Unanimously voted (7-0) in the matter of In re: Natalie McDonald, Complaint No. 2019-18, to initially determine that the Complaint fails to state facts as to Counts I and III that are sufficient to constitute a violation of the Code of Ethics and to dismiss these allegations of the Complaint. 6. Voted (7-0) in the matter of In re: Sarah Markey, Complaint No. 2019-9, to enlarge time for investigation for 60 days. 7. There were no new litigation updates 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 October 29, 2019. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Quinn, it was unanimously VOTED: To seal the minutes of the Executive Session held on October 29, 2019. The final order of business was: Director’s Report: Status report and updates The Director’s Report was continued to the next Commission meeting. At 11:40 a.m., upon motion made by Commissioner Vaziri and duly seconded by Commissioner Corrente, it was unanimously VOTED: To adjourn. Respectfully submitted, _____________________________ Arianne Corrente Secretary