Patrick McDonald Complaint No. 2001-41 STATE OF RHODE ISLAND BEFORE THE RHODE ISLAND ETHICS COMMISSION In Re: Patrick McDonald Complaint No. 2001-41,Complaint No. NF 2002-13 DECISION AND ORDER Pursuant to the Rhode Island Code of Ethics, R.I.G.L. § 36-14-1 et seq. and Regulation 1015 enacted thereto, the Rhode Island Ethics Commission (the “Commission”) held an adjudicative hearing in open session on the above consolidated matters on January 25, 2005. 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: James Lynch, Sr., Chair; George E. Weavill, Jr., Secretary; James C. Segovis; Frederick K. Butler; Barbara R. Binder. Katherine D’Arezzo, Attorney at Law prosecuted the case. Respondent Patrick McDonald was not present. Kathleen Managhan attended all proceedings as legal counsel to the Commission. BACKGROUND AND TRAVEL OF CASES Complaint No. 2001-41 Patrick T. McDonald (Respondent) was elected a State Senator in 1996 and served until 2002. He was appointed to the Coastal Resources Management Council in 1997 and was serving on said Council in 1999. By virtue of both of those positions Respondent was subject to the financial disclosure requirements of R.I.G.L. § 36-14-16 from 1996 until 2002. According to mailing lists maintained by the Commission, on March 27, 2000, the Commission staff forwarded a financial disclosure statement form for the 1999 calendar year to the Respondent at his residence located at 95 Riverdell Drive, Saunderstown, Rhode Island 02874 (hereinafter the “Riverdell address.”) Commission records reflect that Respondent did not file a completed 1999 financial statement. Commission records further reveal that Respondent had filed financial statements for calendar years 1991 through 1995 years when Respondent had served on the Narragansett Town Council. The Respondent had previously designated said address as his home address on his 1995 financial statement. On or about June 18, 2001, a Complaint was filed with the Commission by Ronald G. Santa and Robert P. Arruda, alleging that Respondent had violated the Code of Ethics by failing to file a financial disclosure statement for 1999. On June 29, 2001 the Commission forwarded a Notification of Receipt of Complaint to the Respondent via certified mail to the aforesaid Riverdell address, return receipt requested. The United States Postal Service returned the Complaint materials to the Commission as unclaimed on or about July 26, 2001. The Commission then forwarded said materials to the Riverdell address via regular mail on July 26, 2001. Those materials were not returned to the Commission as undeliverable nor did the Commission receive notice of any change in Respondent’s address. After making an initial determination that the Complaint alleged facts sufficient to constitute a knowing and willful violation of the Code of Ethics, the Commission investigated the allegations contained in the Complaint. After a probable cause hearing on December 11, 2001, the Commission pursuant to R.I.G.L. § 36-14-12(c)(4) and Commission Regulation 1006 entered an Order and Finding of Probable Cause which provided: The Respondent, an elected State Senator, by failing to file his 1999 Financial Disclosure Statement, violated R.I. Gen. Laws § 36-14-16. Complaint No. NF 2002-13 As previously stated, in 1996, Respondent was elected to the Rhode Island Senate and served in that capacity until 2002. On March 29, 2002, the Commission caused a financial disclosure statement for the 2001 calendar year to be mailed to the Respondent at the Riverdell address. Said statement was not returned to the Commission as undeliverable. On July 5, 2002 the Commission caused a reminder notice to be mailed to the Respondent at the same address. Said notice was not returned to the Commission as un-deliverable. Commission records reflect that Respondent has not filed a 2001 financial disclosure statement as required by R.I.G.L. § 36-14-16. Therefore on December 16, 2002 the Executive Director of the Commission through his designee Peter J. Mancini, Commission Investigator, filed a Complaint with the Commission. Said Complaint alleged that Respondent violated R.I.G.L. § 36-14-16 by failing to file an annual financial disclosure statement for the 2001 calendar year in which he served as State Senator. Notification of the filing of the Complaint was sent on or about December 16, 2002 to Respondent at the Riverdell address by certified mail. This package was returned by the United States Postal Service as unclaimed on January 10, 2003, indicating a corrected address of 1 Crestwood Drive, Narragansett, Rhode Island 02882. After Commission investigators confirmed the accuracy of this address, on January 16, 2003 the Complaint was mailed to the Respondent at the Crestwood Drive address. After an initial determination that the Complaint stated a violation of the Code of Ethics, the Commission investigated the Complaint. After a probable cause hearing on May 13, 2003 the Commission pursuant to R.I.G.L. § 36-14-12(c)(4) and Commission Regulation 1006 entered an Order and Finding of Probable Cause which provided: By failing to file his 2001 financial disclosure statement, the Respondent, an elected official, violated R.I. Gen. Laws § 36-14-16. On January 4, 2005, pursuant to Motion of the Prosecutor, both Complaints were consolidated for adjudicative proceedings. SUMMARY OF ADJUDICATIVE PROCEEDINGS On January 25, 2005 the prosecution provided testimony from: Michelle Lee, Anthony Lupinacci and Commission Investigator Peter Mancini. As previously stated, Respondent was not present for any part of the proceeding. OUTLINE OF TESTIMONY AND EVIDENCE On January 25, 2005, after opening statements by the prosecutor the Commission heard the testimony of Michelle Lee. Ms. Lee, being sworn, testified that she has worked for the Ethics Commission as an administrative officer for approximately eight and one-half years. Part of her responsibilities are to maintain records concerning financial disclosure filings. She explained that financial disclosure forms are mailed before the last Friday in March each year. Completed forms are to be filed with the Commission before the last Friday in April of each year and call for the disclosure of financial information relative to the previous year before filing. The Commission maintains a data base of names, addresses and positions of all individuals required by the Code of Ethics to complete such financial disclosure forms as well as dates of filing. The source of information concerning officials and employees who would be obligated to file the forms is, amongst other sources - - town clerks, the governor’s office, the Internet and the Providence Journal. With regard to the Respondent, Ms. Lee testified that she had reviewed the Commission records as of January 21, 2005, noted that Respondent had last filed a financial disclosure statement for year 1995, but found no record of any filings for year 1999 or year 2001. Prosecution then offered the following document as Prosecution 1 Full: the 1995 financial disclosure statement filed by Respondent in May of 1996 reflecting his address of 95 Riverdell Drive, Saunderstown, Rhode Island. Ms. Lee testified that the Commission maintains a master mailing list and subscribes to an address correction service for forms which are returned as undeliverable. She keeps a record and catalog of forms which are returned by the Post Office as undeliverable. She testified that neither the financial disclosure statement for year 1999 nor the financial disclosure statement for year 2001 mailed to Respondent were returned as undeliverable. Both were mailed to the Riverdell address. Through Ms. Lee the prosecution offered Prosecution 2 Full: Certification of Mailing of 2001 financial disclosure statements. Said list includes the name of Respondent at the Riverdell address. Ms. Lee continued to testify that reminder notices as to the 2001 financial disclosure statements were sent the first week in July of 2002 to individuals who had not as yet filed 2001 statements. Respondent’s name was contained on said list along with a reference that the reminder was sent to him at the Riverdell address and was not returned. Anthony Lupinacci, being sworn, testified that he had been employed by the State of Rhode Island Department of Administration Library Technical Support Services since 1994. Amongst his responsibilities are managing the Commission’s data bases including the financial disclosure mailing lists, which function he has performed since 1996. Mr Lupinacci explained how he maintains the master mailing lists. Through Mr Lupinacci the prosecution offered Prosecution 3 Full: the Financial Disclosure Master Mailing List for 1999. That list showed that a financial disclosure statement was mailed to Respondent at the Riverdell address. Through Mr Lupinacci the prosecution offered Prosecution 4 Full: the Financial Disclosure Master Mailing List for 2001. Again Respondent’s name appeared on that list as having been mailed a financial disclosure form at the Riverdell address. Offered as Prosecution 5 Full was: a Financial Disclosure Master Mailing List of Reminder Notices to non-filers of 2001 financial disclosure statements which reflected that a reminder notice was sent to Respondent at the Riverdell address. A copy of the standard reminder letter sent to non-filers of 2001 statements was offered as Prosecution 6 Full. Mr Lupinacci testified that Respondent’s name was on the list of individuals who were sent a reminder letter in 2002 concerning their failure to timely file a 2001 financial disclosure statement. Peter Mancini, being sworn, testified that he had been an investigator for the Commission for three and one-half years. He also testified that he had filed Complaint No. NF 2002-13. Mr Mancini testified that Respondent was one of twenty officials who was the subject of a Complaint for non-filing of a 2001 statement. In verifying Respondent’s Riverdell address, Mr Mancini checked the Commission records, the Rhode Island State Government Owner’s Manual, the Department of Motor Vehicles and the General Assembly web site. Offered through Mr Mancini was a Certification from the Rhode Island Board of Elections reflecting that Respondent had served as a State Senator for years 1996 through 2002, which was offered as Prosecution 7 Full. Also offered through Mr Mancini as Prosecution 8 Full, was a proposed settlement letter, with Consent Form which was sent to Respondent regarding his 1999 non-filing. This letter was sent on November 9, 2001 along with a Consent Form whereby Respondent could have consented to settlement of the pending Complaint resulting from his 1999 non-filing and which contained a suggested fine. That letter was sent to the Riverdell address. It was not returned, nor was there any reply from Respondent. Mr Mancini testified to subsequent efforts to settle the non-filing complaints which had been filed with the Commission against Respondent. On June 25, 2004, Mr Mancini met with Respondent, who indicated that he was aware of the non-filing Complaints, conceded the non-filings, and stated that he just “didn’t get around to filing.” He did not offer any contest to the Complaints or other explanation. Mr Mancini testified that he also made additional visits to Respondent as late as August of 2004, to attempt to settle the complaints. Respondent told him that he did not have the money to settle the Complaints, again admitted the non-filings, and said the matter would have to go to adjudication. Mr Mancini further testified that he spoke with Respondent on Friday, January 21, 2005, that Respondent indicated that he knew about the adjudicative hearing scheduled for January 25, 2005 and intended to attend. Mr Mancini further testified that he contacted Respondent at his law office the morning of the hearing, and was told that Respondent was with a client. Respondent did not return the phone call. Mr Mancini testified that Respondent also verified receipt of all of the Commission correspondence and indicated that he had moved to the Crestwood Drive address after the 1999 and 2001 financial disclosure statements had been mailed to him. DISCUSSION After hearing and after consideration of all the evidence presented the Commission concludes that Respondent, although having filed financial disclosure statements for years 1991 through 1995, did not file financial disclosure statements for years 1999 and 2001. The Commission finds that by failing to file said financial disclosure statements Respondent Patrick P. McDonald, knowingly and willfully violated the Code of Ethics R.I.G.L. § 36-14-16. Based upon the substantial evidence presented to the Commission of the Respondent’s continued declination to respond to any of the mailings sent to him by the Commission, which included the mailings of the financial disclosure statements, reminder notices, mailed settlement letter, notice of Complaints, visits by Commission staff to his law office to attempt to settle the two Complaints, the Respondent’s nonchalant attitude toward his non-filing, and his failure to appear for the adjudicative hearing, all of these actions indicated to the Commission a contemptuous attitude by the Respondent not only towards the Commission but to the Code of Ethics financial disclosure requirements as well. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Patrick T. McDonald, served as a State Senator in the General Assembly in the State of Rhode Island for years 1996 through 2002. 2. Pursuant to R.I. General Laws § 36-14-16 all elected and appointed state and municipal officials are required to file yearly financial disclosure statements with the Commission. 3. Patrick T. McDonald filed such financial statements for the years 1991 through 1995 when he served as a member of the Narragansett Town Council. 4. Patrick T. McDonald received the financial disclosure statement forms for the years 1999 and 2001. 5. 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 data base. That routine involved maintaining master mailing lists of individuals to whom the financial disclosure statements were sent, lists of non-filers, and lists of individuals to whom reminder letters had been sent. 6. Patrick T. McDonald’s financial disclosure folder contains Mr McDonald’s financial disclosure statements for years 1991 through 1995. Neither the Commission archives records nor Mr McDonald’s financial disclosure folder contain Mr McDonald’s financial disclosure statements for years 1999 and 2001. 7. The Commission’s computer data base contains information that Patrick T. McDonald did not file financial disclosure statements for years 1999 and 2001. 8. Patrick T. McDonald has conceded to a Commission investigator that he did not file completed financial disclosure forms with the Commission for years 1999 and 2001, though he admitted having received forms to fill out and return. 9. Based upon the conduct and facts as described, we find that Respondent as an elected State Senator violated R.I.G.L. § 36-14-16 by failing to file a financial disclosure statement for 1999. 10. Based upon the conduct and facts as described, we find that Respondent as an elected State Senator violated R.I.G.L. § 36-14-16 by failing to file a financial disclosure statement for 2001. PENALTY 1. As to Complaint No. 2001-41, the Commission hereby assesses a penalty of $2,000.00. 2. As to Compliant No. NF 2002-13, the Commission hereby assesses a penalty of $2,000.00. VOTE The vote on the finding and the penalty were 5 - 0. _________________________________ James Lynch, Chair February ____, 2005