Minutes May 18, 2021 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION May 18, 2021 The Rhode Island Ethics Commission remotely conducted its 9th meeting of 2021 in Zoom webinar format at 9:00 a.m. on Tuesday, May 18, 2021, 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 J. Douglas Bennett Arianne Corrente, Vice Chair Lauren E. Jones Kyle P. Palumbo, Secretary Matthew D. Strauss M. Therese Antone Holly J. Susi The following Commissioner was not present: 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 Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross, Peter J. Mancini, and Gary V. Petrarca. At 9:01 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 stated that the Commission has been operating pursuant to the Governor’s executive orders allowing public bodies to conduct remote meetings during the COVID-19 pandemic. He explained that the Commission will consider the draft advisory opinions noticed for today in Open Session after which it will convene briefly in a separate Executive Session and then return to this Open Session to provide a live report on all actions taken in Executive Session. He informed that copies of today’s agenda and draft advisory opinions are accessible on the Commission’s website under the link for Meeting Materials, and a written report of all actions taken in Executive Session will be published and available on the website after the meeting ends. The next order of business was: Approval of minutes of the Open Session held on April 27, 2021. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Antone, it was unanimously VOTED: To approve the minutes of the Open Session held on April 27, 2021. 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 most of the staff has been teleworking during the COVID-19 pandemic. He referred to an email communication from the Department of Administration yesterday evening informing that vaccinated employees working in person may do so without masks while maintaining social distancing. Executive Director Gramitt stated that the Ethics Commission’s office is not prepared yet to implement that guidance and will continue its current operations while planning for future adjustments. In response to Chair Quinn, Executive Director Gramitt informed that the state has not released any information relative to requiring state employees to be vaccinated or provide proof of vaccination. He stated that he is unable to inquire of the staff members’ vaccination status due to privacy laws but will continue to maintain safety protocols. b.) Complaints and investigations pending There are five open complaints pending, including the two Corrigan Complaints which are still in the appeal period. Executive Director Gramitt informed that two of the remaining three complaints are in their first extension period and the third is in its initial investigative period. c.) Advisory opinions pending There are 10 advisory opinions pending, with five noticed for today’s meeting. Executive Director Gramitt informed that an additional five advisory opinion requests were withdrawn after the petitioners received informal guidance from staff attorneys. d.) Access to Public Records Act requests since last meeting There were two APRA requests received since the last meeting, both of which were granted within one business day. Executive Director Gramitt informed that one request related to a complaint and the other related to an advisory opinion. He stated that APRA requests have decreased largely due to the online accessibility of financial disclosure statements. Executive Director Gramitt noted that some people are experiencing CAPTCHA issues when trying to review financial disclosure statements online and that these issues are being reviewed. e.) Financial Disclosure: Update on upcoming 2020 filing period Executive Director Gramitt informed that the compliance rate is currently at 90%, the highest rate for this date in time. He further informed that reminder letters will be going out soon to those who have not yet filed. 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: Angelica Bovis, a member of the Smithfield Town Council, and a former member of the Smithfield Land Trust, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in Town Council discussions and voting on property matters in which she had previously participated and voted as a member of the Land Trust. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Chair Quinn queried as to the relevance of the last sentence of the third paragraph on page one which stated, in part, that “many of the current Land Trust members are new and that [the Petitioner] is the only person that is able to answer the Town Council’s questions regarding the Land Trust’s recommendations.” Staff Attorney Popova Papa stated that this sentence does not have any bearing on the legal analysis. Commissioner Jones noted that it is common for a person who leaves one board and joins another to have prior knowledge that may assist her in her new position. Commissioner Antone expressed some concern over the sentence and its relevance and inquired whether it could be removed from the draft. Staff Attorney Popova Papa stated that she could remove the sentence if the Commission so decided. Upon motion made by Commissioner Antone and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Angelica Bovis, a member of the Smithfield Town Council, and a former member of the Smithfield Land Trust. The next advisory opinion was that of: Robert Jones, a former member of the North Kingstown School Committee, requests an advisory opinion regarding whether he may continue to serve on the North Kingstown Charter Commission and accept an appointment to serve on the North Kingstown Budget Committee, both unpaid municipal appointed positions, prior to the expiration of one year following the Petitioner’s severance from his position as a School Committee member. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Staff Attorney Popova Papa noted corrections to be made to the question presented and the response on page one, both of which read “Audit Committee” but should read “Budget Committee.” Upon motion made by Commissioner Bennett and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, as amended and attached hereto, to Robert Jones, a former member of the North Kingstown School Committee. The next advisory opinion was that of: Matthew McGeorge, AIA, LEED AP, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing himself before his own board. Staff Attorney Popova Papa presented the Commission Staff recommendation. She explained that the Petitioner had represented that he was traveling and might not be able to log in to the meeting but agreed to the Commission proceeding in his absence. Commissioner Bennett expressed concern with the facts in the draft and stated that these requests should continue to come before the Commission to be assessed based on their individual facts. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Matthew McGeorge, AIA, LEED AP, a member of the East Greenwich Historic District Commission, who in his private capacity is an architect. The next advisory opinion was that of: Members of the Retirement Board of the Employees’ Retirement System of the State of Rhode Island, by a unanimous vote, request an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon certain Retirement Board members with respect to participating in disability adjudications and contested administrative hearings, given that some Retirement Board members are state or municipal elected officials or employees, and others are affiliated with national, state, and local labor or other organizations. Commissioner Susi recused from participation. Staff Attorney Radiches presented the Commission Staff recommendation. Michael Robinson, Esq. was present via video link on behalf of the Retirement Board. Attorney Robinson referred to the guidance at the bottom of page six and top of page seven of the draft which reads that “[a] Retirement Board member is not required to recuse from participation in disability adjudications or contested administrative hearings if the applicant is a rank and file member of a private organization within which the Retirement Board member has a leadership position, provided that said rank and file member is not represented by an employee or agent of that organization.” He inquired whether the prohibitive language applies to attorneys hired by the union to represent the member(s) and cited to Advisory Opinions 2018-55 and 2003-66. Staff Attorney Radiches stated that an attorney of an organization is an agent of that organization and the Retirement Board member should recuse. Executive Director Gramitt stated that the current draft is sound in its guidance, but Attorney Robinson’s specific inquiry is not addressed in this draft and the staff should discuss this inquiry with him separately. In response to Commissioner Palumbo, Staff Attorney Radiches stated that the initial change in the Commission’s position regarding rank and file members occurred in 2013, and it was further addressed in 2019 in both an advisory opinion and a complaint matter. In further response to Commissioner Palumbo’s inquiry about the relationship between a union leader and the rank and file member(s) who elected that leader, Staff Attorney Radiches explained that rank and file members of union organizations sometimes number in the hundreds and even thousands, and the Code does not require a Retirement Board member who holds a leadership position in a private organization to recuse whenever a rank and file member of that organization appears before him, provided that the rank and file member does not have the ability to affect the financial objectives of the organization. Commissioner Jones noted that the Retirement Board and Attorney Robinson must consider the question of how and by whom a given attorney representing the rank and file member(s) is retained. Executive Director Gramitt stated that when it is clear that an attorney is not retained or compensated by the union, recusal is not required by the Retirement Board member; however, when it is unclear, recusal is advised until further guidance is received. In response to Chair Quinn, Attorney Robinson stated that he will advise the Retirement Board of the Commission’s guidance and caution. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was VOTED: To issue an advisory opinion, attached hereto, to Members of the Retirement Board of the Employees’ Retirement System of the State of Rhode Island. AYES: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; Lauren E. Jones; Kyle P. Palumbo; and Matthew D. Strauss. RECUSAL: Holly J. Susi. The final advisory opinion was that of: Mario Carreño, the School Building Authority Finance Officer for the Rhode Island Department of Education, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting an appointment to fill a vacancy on the Lincoln School Committee, a municipal appointed position, and from then serving simultaneously in both positions. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Commissioner Bennett stated that he would feel more comfortable with the draft if it represented that the Petitioner will recuse from any matters involving the Town of Lincoln. Commissioner Jones stated that, although the Petitioner is not a business associate of the Lincoln School Committee, he should not be involved in matters involving the School Committee in his capacity as a state employee due to appearance of impropriety concerns. Commissioner Bennett noted that the Town can benefit from the Petitioner’s expertise, but there are issues if he promotes a school project and then participates in both his state and municipal roles. Commissioner Bennett stated that the advisory opinion should endorse the Petitioner’s recusal from any matters involving his community. Staff Attorney Radiches informed that the Petitioner made the choice to recuse and this is reflected in the facts section of the draft because it is his representation and is commendable. She further informed that participating in a matter that bears an appearance of impropriety, while something to be avoided under our state Constitution, is not in and of itself a violation of the Code. Staff Attorney Radiches stated that the Commission should not condition its issuance of the opinion on the Petitioner’s agreement to recuse from a matter for which recusal is not required because the Town is not his business associate and the Petitioner’s participation would not otherwise be prohibited. Commissioner Jones stated that the Petitioner has no decision-making authority at the state level but that he could experience issues on the municipal level. In response to Commissioner Palumbo, the Petitioner stated that, on the municipal level, the School Committee does not exercise much discretion because the applicable statutes are clear-cut. Upon motion made by Commissioner Jones and duly seconded by Commissioner Antone, it was VOTED: To issue an advisory opinion, attached hereto, to Mario Carreño, the School Building Authority Finance Officer for the Rhode Island Department of Education. AYES: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; Lauren E. Jones; Matthew D. Strauss; and Holly Susi. NOES: Kyle P. Palumbo. The next order of business was: Discussion of historical and current financial disclosure compliance and enforcement efforts, policies and practices. Executive Director Gramitt explained that the purpose of this agenda item is to inform the Commission of the staff’s procedure for identifying persons who have never filed financial disclosure statements but are required to do so. Executive Director Gramitt discussed the three categories of filing deadlines: (1) candidates for office must file the previous year’s statement within 30 days of declaring their candidacy or filing a notice of organization; (2) incumbent officials must file by the end of April; and (3) new appointees must file within 30 days of appointment or qualification for office. Executive Director Gramitt informed that the Ethics Commission has the statutory responsibility to send financial disclosure statements to those required to file. He stated that the staff goes beyond this responsibility by sending instructions for completing the forms as well as online filing instructions. Executive Director Gramitt explained that the staff receives information regarding required filers from the Board of Elections, the Governor’s office, municipal clerks, and public agencies on an annual and sometimes rolling basis. He stated that all persons identified as required filers are added to the Commission’s database and the staff immediately sends a financial disclosure form to them providing them with 30 days to file. He explained that if the Commission does not receive notice of a new appointment, the statutory filing period is tolled, by regulation, until it receives such notification. Executive Director Gramitt explained that, at times, the staff learns through a public inquiry that an individual is not in the database and, therefore, has not received a financial statement. In such cases, the staff obtains information from the individual’s public body, notifies him/her of the duty to file, and provides 30 days within which to do so. Executive Director Gramitt explained that the member of the public who requested the statement is informed that the individual has 30 days to comply and a complaint will not be accepted within that time period. He advised that non-filing complaints have not been processed against individuals for whom the Commission did not receive notice of appointment. Executive Director Gramitt welcomed the Commission’s input on the process for handling such irregularities. Commissioner Palumbo noted that the current process reflects an appropriate balance between enforcement and providing notice. In response to Commissioner Jones, Executive Director Gramitt stated that, although infrequent, there have been situations where a fire district or charter school did not notify the Commission of appointments, which resulted in those individuals not being in compliance with the filing requirement for more than a year after being appointed. [Reporter’s Note: Discussion of this agenda item continued after Executive Session, as reported on page 8 of these minutes]. New Business proposed for future Commission agendas and general comments from the Commission. There was none. At 10:22 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Jones,* it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on April 27, 2021, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) Motion to return to Open Session. *Commissioner Antone informed that she would be leaving the meeting and not returning. At 10:30 a.m., the Commission reconvened in Open Session. 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. Unanimously voted (7-0) to approve the minutes of the Executive Session held on April 27, 2021. 2. Unanimously voted (7-0) to return to Open Session. Returning to agenda item #6 regarding financial disclosure, Chair Quinn inquired how the staff would handle a situation where the Commission did not receive notice of an appointment and more than one year of financial statements is in arrears. Executive Director Gramitt stated that the staff would instruct the person to file only the most current year’s statement. He explained that requiring an individual to file all arrear years, back to the start of his/her public position, could create problematic situations in which the filer incorrectly recalls information and then becomes the subject of a complaint due to omitted or inaccurate information. He advised that, absent the Commission providing other direction, the staff will continue to handle such situations in accordance with the foregoing. At 10:34 a.m., upon motion made by Commissioner Corrente and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary