Minutes November 20, 2018

MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION

November 20, 2018

The Rhode Island Ethics Commission held its 18^th 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, November 20, 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 Arianne Corrente

Marisa A. Quinn, Vice Chair Timothy Murphy

M. Therese Antone

The following Commissioner(s) were not present: J. Douglas Bennett; John D. Lynch, Jr.; James V. Murray; and Robert A. Salk.

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 9:06 a.m., the Chair opened the meeting. The first order of business was:

Approval of minutes of the Open Session held on October 16, 2018.

Upon motion made by Commissioner Quinn and duly seconded by Commissioner Antone, it was

VOTED: To approve the minutes of the Open Session held on October 16, 2018.

AYES: Ross Cheit; M. Therese Antone; Arianne Corrente; and Marisa A. Quinn.

ABSTENTIONS: Timothy Murphy.

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:

Glenn Cabral, the Chief of Electrical and Construction Projects with the Rhode Island Department of Transportation, Highway and Bridge Maintenance Division, who also serves as an independent contractor for the East Providence Police Department performing traffic detail work, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working as a traffic control assistant for Department of Transportation construction projects occurring within the City of East Providence on state-owned roadways, given his employment with the Department of Transportation.

Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. He represented to the Commission that he has thus far recused. In response to Chair Cheit, the Petitioner stated that he sought this advisory opinion on his own. In response to Commissioner Murphy, Staff Attorney Popova Papa explained that the last paragraph of the advisory opinion informs that the Petitioner is prohibited from representing himself or others before the Department of Transportation (“DOT”) and its divisions. Executive Director Gramitt added that the Petitioner is free to accept work for non-DOT-initiated projects. In response to Commissioner Quinn, Staff Attorney Popova Papa explained that, based on past advisory opinions, ministerial duties include delivering documents and submitting or retrieving papers, while substantive duties involve decision-making. In further response to Commissioner Quinn, Staff Attorney Popova Papa stated that the act of reviewing and signing the Petitioner’s timesheet involves some discretion. Upon motionmade by Commissioner Quinn and duly seconded by Commissioner Antone, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Glenn Cabral, the Chief of Electrical and Construction Projects with the Rhode Island Department of Transportation, Highway and Bridge Maintenance Division, who also serves as an independent contractor for the East Providence Police Department performing traffic detail work.

The next advisory opinion was that of:

Dean Wagner, a member of the Jamestown Zoning Board of Review, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and voting on Zoning Board matters in which an applicant or objector is represented by an attorney from the law firm at which the Petitioner’s spouse is employed as a legal assistant.

Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present. The Petitioner noted that he is an appointed, not elected, member of the Jamestown Zoning Board of Review. In response to Chair Cheit, the Petitioner stated that he sought this advisory opinion because other members of the Zoning Board have been inquiring as to his frequent recusals, and he expects to become Chairman of the Board of Review next month and wanted to clarify this issue beforehand. Upon motion made by Commissioner Antone and duly seconded by Commissioner Quinn, it was unanimously

VOTED: To issue an advisory opinion, attached hereto, to Dean Wagner, a member of the Jamestown Zoning Board of Review.

The final advisory opinion was that of:

Derek M. Silva, a member of the Rhode Island State Labor Relations Board, who is also a Lieutenant with the Providence Fire Department, a municipal employee position, and the

President and Legislative Agent for Providence Fire Fighters Local 799 of the International

Association of Fire Fighters, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and decision-making relative to Labor Relations Board matters involving parties other than Providence Fire Fighters Local 799 and its members, when such other parties are represented by an attorney who has in the past represented or is representing Providence Fire Fighters Local 799 or its members on unrelated matters.

Chair Cheit stated that Commissioner Corrente would recuse from consideration of this matter resulting in the loss of a quorum. He inquired whether safe harbor had been issued to the Petitioner. Staff Attorney Popova Papa stated that safe harbor had not been issued but the Commission could do so now. Chair Cheit responded that safe harbor should apply, and the matter will be heard at the next meeting where there is a quorum. Executive Director Gramitt noted that the Commission was not required to vote on this matter because it has previously authorized him to issue safe harbor where appropriate.

The next order of business was:

Review of Exemption for Yana Reshetnyak, Ph.D, pursuant to R.I. Public/Private Partnership Act, R.I. Gen. Laws Â§ 16-59-26.

Executive Director Gramitt informed that the Rhode Island Council on Postsecondary Education has approved an exemption under the Public Private Partnership Act regarding Yana Reshetnyak, Ph.D. Executive Director Gramitt explained that this exemption allows professors and researchers to monetize their work and inventions.

Theodore Myatt, Director of Research Integrity at URI, was present to answer any questions or address any concerns. He explained to the Commission that Dr. Reshetnyak’s company is interested in sublicensing technology that she is developing through her research.

Executive Director Gramitt informed the Commission that no action was required unless it finds reason for the Council to re-examine the exemption. No issues were raised by the Commission.

The next order of business was:

Hearing on Respondent’s Motions to Dismiss:

In re: Francis X. Flaherty, Complaint No. 2016-14.

The hearing was stenographically recorded and a transcript of the proceeding is available at the Commission’s Office. Commission Prosecutor Katherine D’Arezzo represented the People of the State of Rhode Island. Marc DeSisto, Esq., represented the Respondent, who was not present.

Chair Cheit opened the hearing by stating that the Respondent’s three motions would be considered in order and asked Attorney DeSisto to present his arguments first as the moving party.

Attorney DeSisto inquired if the Commission would render its decisions on all three motions at this meeting. Chair Cheit informed that the Commission would deliberate and vote on each motion.

As to the Respondent’s first Motion to Dismiss, Attorney DeSisto presented arguments that the Commission impermissibly expanded the definition of “business entity” when it found probable cause to believe that the Respondent violated Commission Regulation 36-14-17008.[1] Commission Prosecutor D’Arezzo argued that the Commission has the constitutional authority to enact substantive ethics regulations relating to financial disclosure and that, in this case, Regulation 17008 is consistent with R.I. Gen. Laws Â§ 36-14-17(b)(6).

The Commission questioned Attorney DeSisto. The Commission deliberated in open session. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Antone, it was

VOTED: To grant the Respondent’s first Motion to Dismiss Complaint No. 2016-14.

AYES: None.

NOES: Ross Cheit; M. Therese Antone; Arianne Corrente; Timothy Murphy; and Marisa A. Quinn.

The Respondent’s first Motion to Dismiss was denied.

As to the Respondent’s second Motion to Dismiss, Attorney DeSisto argued that the Commission’s dual role of investigating and adjudicating complaints violated the Respondent’s due process rights. He further argued that the Commission Chair’s failure to recuse himself from this matter before the probable cause hearing also violated the Respondent’s due process rights. Discussion ensued and Chair Cheit offered comments as to why he was not required to recuse, that he held no bias against the Respondent, and that he had not prejudged the ultimate issues to be decided at adjudication. Commission Prosecutor D’Arezzo presented arguments in support of the process employed by the Commission for investigating and adjudicating complaints. She further argued that at no point did the Respondent either formally or informally request that the Chair recuse, and that the Respondent has not overcome the presumption of honesty and integrity on the part of the Chair. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Corrente, it was

VOTED: To grant the Respondent’s second Motion to Dismiss Complaint No. 2016-14.

AYES: None.

NOES: Ross Cheit; M. Therese Antone; Arianne Corrente; Timothy Murphy; and Marisa A. Quinn.

The Respondent’s second Motion to Dismiss was denied.

As to the Respondent’s third Motion to Dismiss, Attorney DeSisto informed that he filed this motion to preserve the record should this matter proceed further. He argued that the knowing and willful standard that the Commission must apply is that articulated by the Superior Court in Larisa v. Rhode Island Ethics Commission. Commission Prosecutor D’Arezzo stated the knowing and willful standard and argued that the Respondent’s failure to disclose his position in the St. Thomas More Society on his financial disclosure statements was not reasonable due to the plain language of the regulation and clear directives on the forms and instructions. Upon motion made by Commissioner Antone and duly seconded by Commissioner Quinn, it was

VOTED: To grant the Respondent’s third Motion to Dismiss Complaint No. 2016-14.

AYES: M. Therese Antone.

NOES: Ross Cheit; Arianne Corrente; Timothy Murphy; and Marisa A. Quinn.

The Respondent’s third Motion to Dismiss was denied.

Executive Session.

At 10:35 a.m., uponmotion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously

VOTED: To go into Executive Session, to wit:

1. Motion to approve the minutes of the Executive Session held on October 16, 2018, pursuant to R.I. Gen. Laws Â§ 42-46-5(a)(2) and (4).

2. In re: David M. Gleason, Complaint No. 2018-9, pursuant to R.I. Gen. Laws Â§ 42-46-5(a)(2) and (4).

3. In re: James C. Cournoyer, Complaint No. 2018-10, pursuant to R.I. Gen. Laws Â§ 42-46-5(a)(2) and (4).

4. In re: Linda Carter, Complaint No. 2018-11, pursuant to R.I. Gen. Laws Â§ 42-46-5(a)(2) and (4).

5. Motion to return to Open Session.