Minutes November 15, 2016 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION November 15, 2016 The Rhode Island Ethics Commission held its 14th meeting of 2016 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, November 15, 2016, 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 Frederick K. Butler Marisa A. Quinn, Vice Chair Mark B. Heffner Robert A. Salk, Secretary* James V. Murray Also present were Edmund L. Alves, Jr., Commission Legal Counsel; Katherine D’Arezzo, Senior Staff Attorney; Jason Gramitt, Education Coordinator/Staff Attorney; Staff Attorney Teodora Popova Papa; and Commission Investigators Steven T. Cross, Peter J. Mancini and Gary V. Petrarca. At 9:02 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on October 18, 2016. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Butler, it was VOTED: To approve minutes of the Open Session held on October 18, 2016. AYES: Frederick K. Butler; Marisa A. Quinn; and Ross Cheit. ABSTENTIONS: Mark B. Heffner; James V. Murray. *Commissioner Salk arrived at 9:05 a.m. 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: Magdy A. Guirguis, PE, a Supervising Civil Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration, requests an advisory opinion regarding whether, upon his retirement from state employment, there is a waiting period during which he may not design onsite waste water treatment systems requiring the approval of the Rhode Island Department of Environmental Management. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Murray and duly seconded by Commissioner Butler, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Magdy A. Guirguis, PE, a Supervising Civil Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration The next advisory opinion was that of: Christopher B. Frenier, a Probation and Parole Supervisor for the Rhode Island Department of Corrections, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting part-time, private employment with a private sex offender counseling program. Staff Attorney Popova Papa presented the Commission Staff recommendation. She informed that the Petitioner was unable to attend the meeting due to his required attendance at training. Chair Cheit inquired about the draft opinion stating that the Petitioner’s subordinates “generally” do not make referrals to sex offender counseling. He expressed that it would be a problem if there are any cases in which they would do so. Staff Attorney Popova Papa advised that the normal procedure is for sex offenders to be assigned to probation officers with sex offender-specific caseloads. Chair Cheit questioned if a “stepped down” sex offender, assigned to a probation officer with a generic case load, could be stepped back up for any reason. Chair Cheit noted that both prior advisory opinions issued to probation and parole supervisors, specifically the Petitioner and his colleague, were answered in the negative by the Commission. He expressed concern regarding the potential for the Petitioner’s factual circumstances to change, particularly with respect to the individuals he supervises. Staff Attorney Gramitt suggested that the matter be continued to obtain clarification from the Petitioner and inform him of the concerns raised. Commissioner Salk questioned how he could be guaranteed a stagnant caseload. Chair Cheit also inquired as to the circumstances surrounding the Petitioner receiving an offer from a service provider who receives referrals from probation officers. The next advisory opinion was that of: Ellen R. Balasco, Esq., Deputy Chief of Legal Services for the Rhode Island Department of Business Regulation and legal counsel to the Rhode Island Board of Real Estate Appraisers, requests an advisory opinion regarding whether the Code of Ethics prohibits her from completing real estate appraiser pre-licensing education and obtaining a real estate appraiser license, given that the Department of Business Regulation has licensing jurisdiction over real estate appraisers. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Based upon the Petitioner’s clarification that she is usually present at Board meetings, although it is not required, Chair Cheit stated that “only when requested by the Board” should be stricken from page one of the draft. In response to Commissioner Heffner, the Petitioner stated that she is looking to retire in four (4) years and is not planning on working in Rhode Island. In further response, she advised that she needs to complete seventy-five (75) hours of online education to become a trainee appraiser working in a type of apprenticeship with no more than three (3) supervisory appraisers. The Petitioner represented that a trainee has two (2) years to complete the required 2,000 hours of field experience. In response to Commissioner Heffner, the Petitioner informed that a trainee works for the supervisory appraiser as an individual, rather than for his or her company. Commissioner Heffner inquired what would happen if the Petitioner’s supervisory appraiser were subject to a complaint before the Board. The Petitioner represented that she would inform her Director and, upon her recusal, another attorney from the legal department would be assigned to it. In response to Commissioner Heffner, the Petitioner stated her belief that she could accomplish the required field work within the two (2) year period by working nights and on weekends and vacations. Chair Cheit noted that the opinion should reflect the Petitioner’s representation that she will recuse if a supervisory appraiser for whom she works has a disciplinary complaint filed against him or her. In response to Commissioner Heffner, the Petitioner confirmed that she has no objection to adding language stating that she will not work as an appraiser while she is employed by the Department of Business Regulation (“DBR”) and legal counsel to the Board of Real Estate Appraisers. In response to Commissioner Quinn, the Petitioner explained that the DBR’s licensing division, rather than the Board, issues real estate appraiser licenses as a ministerial function pursuant to checklists established by federal mandate. Upon motion made by Commissioner Heffner and duly seconded by Commissioner Murray, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Ellen R. Balasco, Esq., Deputy Chief of Legal Services for the Rhode Island Department of Business Regulation and legal counsel to the Rhode Island Board of Real Estate Appraisers. The next order of business was: Legislative/Constitutional Update: Discussion of the results of Ballot Question 2, resulting change to Rhode Island Constitution, and impact on Ethics Commission jurisdiction and operations. Staff Attorney Gramitt reported that Ballot Question 2 passed by an overwhelming majority of approximately 78%. He expressed thanks to John Marion, Executive Director of Common Cause of Rhode Island, as well as other organizations who formed a coalition in support of Question 2. He informed that the amendment takes effect January 3, 2017. Staff Attorney Gramitt stated that, for the first time in seven (7) years, legislators will be subject to the Commission’s jurisdiction with respect to conflicts of interest in the legislative process. He advised that, in January, the Commission will focus on education and training for members of the General Assembly, with emphasis on what it means to have a conflict of interest with one’s legislative duties and how to get advice regarding potential conflicts. He anticipated that there will be an increase in requests for advisory opinions. Staff Attorney Gramitt further reported that, beginning in January, a two-third vote of the Commission will be required to approve any regulations and the Commission will no longer be able to remove public officials who are subject to expulsion from office, such as the members of the General Assembly. He explained that the amendment also clarifies that any sanctions issued by the Commission are subject to appeal to the judiciary. Chair Cheit expressed that the public’s vote to approve the amendment is a vindication of the Commission’s position in the Irons case. He thanked Staff Attorney Gramitt for his efforts with respect to the amendment. Director’s Report. On behalf of Executive Director Willever, Senior Staff Attorney D’Arezzo reported that there were seventeen (17) complaints pending, which included twelve (12) new non-filing complaints filed by Commission Investigators as part of the annual Operation Compliance initiative. She informed that there were six (6) advisory opinions pending and no preliminary investigation or litigation matters pending. She stated that fifteen (15) APRA requests were received since the last meeting, all but one (1) of which were granted within one business day. The next order of business was: Executive Session. At 10:00 a.m., upon motion made by Commissioner Quinn and duly seconded by Commissioner Butler, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve minutes of Executive Session held on October 18, 2016, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 2. In re: Thomas Rose, Jr., Complaint No. 2016-9, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. Motion to return to Open Session. At 10:05 a.m., the Commission reconvened in Open Session. The next order of business was: Motion to seal minutes of Executive Session held on November 15, 2016. Upon motion made by Commissioner Butler and duly seconded by Commissioner Quinn, it was unanimously VOTED: To seal minutes of the Executive Session held on November 15, 2016. 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 (4-0) to approve the minutes of the Executive Session held on October 18, 2016. [Reporter’s note – The vote was as follows: AYES: Robert A. Salk; Frederick K. Butler; Marisa A. Quinn; and Ross Cheit. ABSTENTIONS: Mark B. Heffner; James V. Murray.] 2. Unanimously voted (6-0) in the matter of In re: Thomas Rose, Jr., Complaint No. 2016-9, to grant a Motion to Enlarge Time, First Extension. The next order of business was: New Business. There was no new business. At 10:07 a.m., upon motion made by Commissioner Quinn and duly seconded by Commissioner Butler, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ Robert A. Salk Secretary