William Estrella Complaint No. 98-8

STATE OF RHODE ISLAND BEFORE THE RHODE ISLAND ETHICS COMMISSION

In Re: William Estrella Complaint No. 98-8

DECISION AND ORDER

Pursuant to the Rhode Island Code of Ethics, R.I. Gen. Laws § 36-14-1 et seq. and Regulation 1017, the Rhode Island Ethics Commission (the 'Commission") held an adjudicative hearing in open session on the above-captioned matter on October 19,1999. At the conclusion of the proceedings, the Commission requested that the parties submit memoranda regarding 1) the presumption of regularity and 2) the standard or proof of the nonoccurrence of an event on or before November 2,1999 (hereinafter the "Supplemental Memoranda"). On November 2,1999, in open session, the Commission reviewed the Supplemental Memoranda without oral argument. Thereafter, the Commission immediately began deliberations. A stenographer was present during all open sessions of the adjudicative proceedings.

The following Commissioners were present for the taking of all testimony and participated in the deliberations and in this Decision and Order:

Melvin Zurier, Chair, Robin Main, Thomas Goldberg, David McCahan, James Lynch, Sr., James Murray, Paul Verrecchia

Katherine Tammelleo, Esquire prosecuted the case. Richard Humphrey, Esquire represented the Respondent during the Commission proceedings. Respondent was present during all adjudicative proceedings except for the Commission's consideration of the Supplemental Memoranda and for the deliberations. Amelia E. Edwards, Esquire attended all proceedings as Legal Counsel to the Commission.

BACKGROUND AND TRAVEL OF CASE

In or about February and/or March, 1998, the Commission initiated a preliminary investigation of William Estrella based on anonymous information that Mr. Estrella had participated in matters in his capacity as a member of the Warren Town Council relating to the Warren Historic District when he owned property in the district. On or about April 10, 1998, Raymond Bouchard, a former Commission investigator, filed a complaint against Mr. Estrella as an elected member of the Warren Town Council. The complaint alleged that Mr. Estrella violated the Code of Ethics by participating and voting on matters relating to the Warren Historic District. It further alleged that Mr. Estrella had violated the Code of Ethics by failing to file financial disclosure statements for the years 1993, 1994, 1995, and 1996.

On September 22, 1998, the Commission made an initial determination that the facts as alleged in the complaint relating to the Warren Historic District did not constitute a violation of the Code of Ethics. The Commission also found that the claims relating to Mr. Estrella's failure to file his financial disclosure statements for the years 1993, 1994, 1995 and 1996, alleged facts sufficient to constitute a violation of the Code of Ethics.

On October 9, 1998, Colleen Brown, former Commission prosecutor, filed the Investigative Report. At that time or shortly thereafter, the Commission sent Mr. Estrella a copy of the Investigative Report and a notice of probable cause hearing. After the probable cause hearing on November 24, 1998, the Commission entered an Order and Finding of Probable Cause which provided:

1. The Respondent, an elected member of the Warren Town Council, by failing to file his 1993 Financial Disclosure Statement until September 1, 1998, violated R.I. Gen. Laws § 36-14-16.

2. The Respondent, an elected member of the Warren Town Council, by failing to file his 1994 Financial Disclosure Statement until September 1, 1998, violated R.I. Gen. Laws § 36-14-16.

3. The Respondent, an elected member of the Warren Town Council, by failing to file his 1995 Financial Disclosure Statement until September 1, 1998, violated R.I. Gen. Laws § 36-14-16.

4. The Respondent, an elected member of the Warren Town Council, by failing to file his 1996 Financial Disclosure Statement until September 1, 1998, violated R.I. Gen. Laws § 36-14-16.

The Commission adjudicated these four charges.

SUMMARY OF ADJUDICATIVE PROCEEDINGS

On October 19, 1999, the prosecution provided testimony from Raymond Bouchard, Michelle Lee, and Anthony Lupinacci and the Respondent testified on his own behalf. Thereafter, the Commission heard closing arguments and requested that the parties submit the Supplemental Memoranda on or before November 2,1999.

OUTLINE OF TESTIMONY AND EVIDENCE

On October 19, 1999, after opening statements by the prosecutor and by Richard Humphrey, Esquire, on behalf of Mr. Estrella, the Commission heard the testimony of Raymond Bouchard. Mr. Bouchard testified that from May, 1992 until March, 1999, he worked as an investigator for the Commission. Mr. Bouchard explained that in early 1998 he conducted a preliminary investigation of Mr. Estrella based on anonymous information that Mr. Estrella, in his capacity as a member of the Warren Town Council, participated in matters relating to the Warren Historic District when Mr. Estrella owned property in the district. Mr. Bouchard testified that, in accordance with the Commission's customary investigatory practices, he examined Mr. Estrella's financial disclosure statements. Mr. Bouchard explained that by statute all elected and appointed state and municipal officials are required to file financial disclosure statements. He testified that the Commission prepares a folder for each official required to file financial disclosure statements. He stated that the Commission maintains the original statements in the officials' folders after they are received. He also testified that the Commission maintains a computer database which records information from each officials' yearly financial disclosure statements.

Mr. Bouchard noted that when he examined Mr. Estrella's financial disclosure folder, it contained a financial disclosure statement for the year 1992. See Exhibit P1. He testified that he also examined the Commission's computer database of past financial disclosure statements for Mr. Estrella and found information from Mr. Estrella's financial disclosure statement for the year 1992. He stated that neither the folder nor the computer contained information from Mr. Estrella's financial disclosure statements for the years 1993 through 1996. He concluded from the absence of the statements in Mr. Estrella's folder and the absence of information in the computer database that Mr. Estrella had failed to file financial disclosure statements for the years 1993 through 1996.

Mr. Bouchard stated that in April of 1998, Attorney Anthony DeSisto presented Mr. Estrella's 1997 financial disclosure statement. At that time, Mr. DeSisto requested original financial disclosure statements for the years 1993-1996. Mr. Bouchard provided Attorney DeSisto with the original statements for the years 1994, 1995, and 1996. He noted, however, that because the Commission no longer had any 1993 forms to give to Mr. DeSisto, Michelle Lee, a Commission employee, altered an original 1994 form by replacing the 4's in 1994 with 3's.

In August, 1998, Mr. Bouchard met with Colleen Brown, Mr. Estrella and Mr. DeSisto regarding the charges filed against Mr. Estrella. At that meeting, Mr. Estrella offered photocopies of financial disclosure forms for the years 1993-1997. Mr. Bouchard noted that the 1993 form was the altered 1994 form given to Mr. Estrella's representative by the Commission in April, 1998. The Commission employees refused to accept the forms, however, because 1) the forms were photocopies and 2) they were not notarized. Thereafter, on August 24, 1998, the Commission received in the mail what appeared to be the same documents that Mr. Estrella had offered at the meeting. Exhibit P3. Again, the Commission refused to accept the forms because they were photocopies and they were not notarized. On September 1, 1998, the Commission received the original financial disclosure statements from Mr. Estrella. Exhibit P4. These originals were notarized by Deborah Saunders on September 1, 1998. Mr. Bouchard testified that when he examined the statements he found that they appeared to be the original forms provided to Mr. DeSisto on behalf of Mr. Estrella in April, 1998.

On cross examination, Mr. Bouchard testified that when he searched the computer database for Mr. Estrella's financial disclosure statements he found that Mr. Estrella had filed financial disclosure statements for the years 1984 through 1992. He admitted that he did not check with other Commission staff when he could not locate Mr. Estrella's financial disclosure statements in his folder. He also admitted that in 1996 the Commission moved its offices. On re-direct, Mr. Bouchard testified that even if the Mr. Estrella's original financial disclosure statements had been misplaced or lost in the move or otherwise, the Commission computer database would have reflected the filings.

The prosecution then called Michelle Lee. Ms. Lee has worked as a Legal Secretary for the Commission for three years. Her job is to assist the Education Coordinator and to handle the financial disclosure filings. Ms. Lee indicated that the Commission has at all times followed a routine procedure when it receives financial disclosure statements by mail and by hand-delivery.

She stated that the financial disclosure statements received by mail are opened and reviewed for the notary signature. They are then time stamped and given to Ms. Lee. Ms. Lee then enters the information into the computer database and files the forms in each official's financial disclosure statement folder. She testified that when the forms are hand-delivered the staff member who accepts the forms checks the forms for the notary signature, time stamps the forms and gives them to Ms. Lee for entry into the official's folder and the computer database. Ms. Lee testified that she was shown the procedure relating to financial disclosure statements by the former office manager. She stated that to her knowledge the Commission had followed the procedure she described for the past 20 years.

She further corroborated Mr. Bouchard's testimony regarding the absence of Mr. Estrella's financial disclosure statements in either his folder or the computer database. She stated that her search disclosed that Mr. Estrella had filed from 1984 through 1992 but had failed to file for the years 1993-1996. She further corroborated Mr. Bouchard that in April of 1998 she replaced the 4's with 3's in the year 1994 on an original 1994 form for Mr. Estrella.

Finally, the prosecution called Anthony Lupinacci, who works for the Department of Administration Library Technical Support Services. Mr. Lupinacci was dismissed however when the parties stipulated that the financial disclosure statements were mailed and received by Mr. Estrella for the years 1993-1996. After the parties so stipulated, the prosecution rested.

For the defense, William Estrella testified on his own behalf. Mr. Estrella admitted that he received the financial disclosure statements for the years 1993 through 1996. Mr. Estrella denied trying to pass off the forms given to him in April, 1998 as copies of the original financial disclosure statements which he claimed to have filed. He stated that he filed the statements for the years 1993 through 1996. He indicated that each year in March when he received the financial disclosure statements from the Commission he copied the information from his prior forms and brought the forms to a Town Council meeting to have the forms notarized. He said that he then mailed the forms on his way home. He testified that none of the forms were ever returned to him. When asked who notarized the documents he stated that he could not recollect. He stated that normally the town clerk, the assistant town clerk or the solicitor would notarize his statements. Mr. Estrella suggested that the Commission must have lost his financial disclosure statements.

He testified that in July 1996, the Commission issued a list of officials who had not filed their financial disclosure statements. He stated that when the Providence Journal published the list, his name was not included He admitted, however, that the Providence Journal might not have printed a complete list. He also testified that he must have filed because a former competitor candidate for the Town Council would have raised the issue during the election if Mr. Estrella had not filed. He stated that the competitor used to check the financial disclosure statements. He did not call the competitor as a witness. Mr. Estrella admitted that he had kept photocopies of his 1984- 1992 financial disclosure statements and his 1997 financial disclosure statement but not the statements for the years 1993-1996.

At the conclusion of Mr. Estrella's testimony, the defense rested. The prosecution waived any rebuttal witnesses. The prosecution and the defense offered closing arguments. Thereafter the Chairman requested that the attorneys file legal memoranda on the issues discussed previously.

After consideration of the Supplemental Memoranda on November 2, 1999 without oral argument or comment from the parties or counsel, the Commission deliberated on this matter.

DISCUSSION

After a hearing and after consideration of all the evidence presented, the Commission concludes that Mr. Estrella did not file his financial disclosure statements for the years 1993, 1994, 1995 and 1996. The Commission finds that, by failing to file the financial disclosure statements, Mr. Estrella knowingly and willfully violated the Code of Ethics, R.I. Gen. Laws § 36-14-16.

The Commission finds the testimony of Mr. Estrella incredible. To believe that Mr. Estrella filed the statements with the Commission for the years 1993 though 1996, the Commission would have to believe and accept that the Commission's routine practice and procedure for keeping and maintaining the financial disclosure information failed four years in a row. The Commission would have to believe that the Commission not only lost four years of original financial disclosure statements but also lost or failed to input Mr. Estrella's financial disclosure information again for four years in a row.

Further, the Commission finds it curious that Mr. Estrella had the foresight to keep photocopies of his financial disclosure statements for the years 1984-1992 and for 1997 but not for the years 1993 through 1996. It seemed particularly unbelievable that he would not have maintained copies of the financial disclosure statements filed since he testified that one of the candidates for Town Council usually raised the issue during the Town Council campaigns.

For guidance on the issue of whether Mr. Estrella's actions represented "knowing and willful" violations of the Code of Ethics, the Commission is guided by the language of the Rhode Island Supreme Court case of Carmody v. Rhode Island Conflict of Interest Commission, 509 A.2d 453 (R.I. 1986). In Carmody , the Supreme Court advised that when considering ethics violations the Commission should consider the acts of the respondent and whether the respondent knew or should have known of the law and/or whether the respondent acted in good faith. The Court noted that when the mandate of the law is clear, as with the financial disclosure law, it is difficult to conceive of a violation that could be reasonable and in good faith. In that case, the Court upheld the Commission's finding that Carmody violated the Code of Ethics by failing to file a financial disclosure statement.

As in Carmody, the Commission finds it is difficult to accept that Mr. Estrella's violation of the clear mandate in the financial disclosure law was reasonable or in good faith. Mr. Estrella clearly understood that the Code of Ethics required him to file financial disclosure statements as an elected member of the Town Council as evidenced by his filing the statements in accordance with the law for the years 1984 through 1992, and 1997. The Commission finds that Mr. Estrella failed to file the statements for the years 1993 through 1996 either knowingly or in reckless disregard of his statutory duty to file.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1.William Estrella for the times pertinent hereto served as an elected member of the Warren Town Council.

2.Pursuant to R.I. Gen. Laws § 36-14-16, all elected and appointed state and municipal officials are required to file yearly financial disclosure statements with the Commission.

3.Mr. Estrella received the financial disclosure statements for the years 1993, 1994, 1995, and 1996.

4. At all times pertinent hereto, the Commission followed a routine practice and procedure for filing financial disclosure statements and for inputting information from the financial disclosure statements into a computer database. The routine involved checking the statements for notary signatures, time stamping the statements, providing the original statements to the staff charged with maintaining the financial disclosure records, entering the information in the Commission's database relating to financial disclosure, and filing the original statements in each official's financial disclosure folder.

5.Mr. Estrella's financial disclosure folder contains Mr. Estrella's financial disclosure statements for the year 1992. The Commission's archived records contain Mr. Estrella's financial disclosure statements for the years 1984 though 1992. Neither the archived records nor Mr. Estrella's financial disclosure folder contain Mr. Estrella's financial disclosure statements for the years 1993 through 1996.

6. The Commission's computer database contains information from Mr. Estrella's financial disclosure statements for the years 1984 through 1992 and for the year 1997 but not for the years 1993 through 1996.

7. Based upon the conduct and the facts as described, we find that the Respondent, as an elected member of the Warren Town Council, violated R.I. Gen. Laws § 36-14-16 by failing to file his 1993 financial disclosure statement until September 1, 1998.

8. Based upon the conduct and the facts as described, we find that the Respondent, as an elected member of the Warren Town Council, violated R.I. Gen. Laws § 36-14-16 by failing to file his 1994 financial disclosure statement until September 1, 1998.

9. Based upon the conduct and the facts as described, we find that the Respondent, as an elected member of the Warren Town Council, violated R.I. Gen. Laws § 36-14-16 by failing to file his 1995 financial disclosure statement until September 1, 1998.

10. Based upon the conduct and the facts as described, we find that the Respondent, as an elected member of the Warren Town Council, violated R.I. Gen. Laws § 36-14-16 by failing to file his 1996 financial disclosure statement until September 1, 1998.

PENALTY

The Commission hereby assesses a penalty of $500 for each of the four violations for a total of $2,000.

VOTE

The vote on the finding and the penalty were unanimous (with Commissioners Kirby and Connor not participating).

Melvin L. Zurier, Chair

November 16, 1999

NOTICE

PURSUANT TO R.I. GEN. LAWS 36-14-15 ANY ACTION BY THE COMMISSION SHALL BE SUBJECT TO APPEAL AND REVIEW PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT.

CERTIFICATE OF SERVICE

I, Patricia F. Barker, hereby certify that on the 16th day of November, 1999, 1 mailed (postage prepaid) a copy of the within document to Richard S. Humphrey, Esq., 3862 Main Road, Tiverton, RI 02878.

Signature