Minutes September 12, 2017 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION September 12, 2017 The Rhode Island Ethics Commission held its 10th meeting of 2017 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, September 12, 2017, 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 J. Douglas Bennett Marisa A. Quinn, Vice Chair Arianne Corrente Robert A. Salk, Secretary Timothy Murphy M. Therese Antone The following Commissioners were not present: John D. Lynch, Jr., and James V. Murray. Also present were Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Jason Gramitt, Education Coordinator/Staff Attorney; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross and Peter J. Mancini. At 9:03 a.m., the Chair opened the meeting. The first order of business was: Approval of minutes of the Open Session held on August 8, 2017. Upon motion made by Commissioner Antone and duly seconded by Commissioner Salk, it was unanimously VOTED: To approve minutes of the Open Session held on August 8, 2017. 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: Arthur Jacques, a member of the Lime Rock Board of Fire Commissioners, requests an advisory opinion regarding whether he may continue his employment as an independent contractor with the Lime Rock Fire District, a position that he has held since prior to his election to the Lime Rock Board of Fire Commissioners. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. In response to Commissioner Murphy, Staff Attorney Popova Papa explained that Commission Regulation 36-14-5014 contains an exception that applies where the public official held the employment prior to his election to office. In further response to Commissioner Murphy, Staff Attorney Popova Papa explained that the Petitioner’s contract with the Lime Rock Fire District is continuous until his duties are fulfilled. The Petitioner stated that his contract is only for this specific project. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Arthur Jacques, a member of the Lime Rock Board of Fire Commissioners. The next advisory opinion was that of: Steven J. Williams, a member of the Charlestown Town Council, requests an advisory opinion regarding whether he may participate in the Town Council’s consideration of increasing the amount of a tax credit available to veterans, given that he is a veteran who is eligible for the existing tax credit. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. In response to Chair Cheit, the Petitioner stated that the Town Administrator recommended that he seek an advisory opinion on this issue. Upon motion made by Commissioner Salk and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Steven J. Williams, a member of the Charlestown Town Council. The next advisory opinion was that of: Kevin M. Lynch, a Deputy Administrator for the Rhode Island Division of Public Utilities and Carriers, a state employee position, requests an advisory opinion regarding the application of the Code of Ethics to his public employment, given that his son has been hired as an employee of Narragansett Electric Company, an entity that is regulated by the Petitioner’s agency. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. The Petitioner was accompanied by John Spirito, Esq., an attorney for the Petitioner’s agency, who assisted the Petitioner in preparing his request for this advisory opinion. Commissioner Bennett advised the Petitioner that this would raise further concerns if his son pursues a career at Narragansett Electric and is promoted. Commissioner Bennett added that it was commendable for the Petitioner to seek out this advisory opinion, but at this employment level, there do not appear to be any issues that could implicate the Code of Ethics. Chair Cheit concurred with Commissioner Bennett’s statement. Upon motion made by Commissioner Antone and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Kevin M. Lynch, a Deputy Administrator for the Rhode Island Division of Public Utilities and Carriers. 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 working, in his private capacity, as an adjunct professor at Rhode Island College. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. Chair Cheit noted that the Petitioner should be apprised of the fact that the representations he asserted in his letter are key in this matter. Chair Cheit stated that his vote to accept the Commission Staff’s recommendation is based on those representations. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Christopher B. Frenier, a Probation and Parole Supervisor for the Rhode Island Department of Corrections. The final advisory opinion was that of: Gregory Maxwell, AIA, 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 a client before his own board. [Request for Withdrawal] Staff Attorney Gramitt addressed the Commission. The Petitioner was not present. Staff Attorney Gramitt explained that this advisory opinion was continued from the Commission’s last meeting on August 8, 2017, to allow the Petitioner to explain to the Commission the bases for his withdrawal request and to represent that he will not be appearing before his board. Staff Attorney Gramitt further explained that the Petitioner could not attend this meeting but submitted a letter which has been provided to the Commission. The Petitioner stated in his letter that he will not be accepting the subject client and also affirmed that he will not represent another client or himself before his own board without seeking an advisory opinion from the Commission. In response to Chair Cheit, Staff Attorney Gramitt stated that the Commission does not need to vote on this matter and can let it pass. Commissioner Murphy commented that the Commission should have a procedure in place for these types of situations. Chair Cheit concurred, adding that the Petitioner cannot be penalized for the fact that there is no such protocol in effect. Commissioner Antone noted that it is difficult to regulate a process that is voluntary. Staff Attorney Gramitt explained that drafting advisory opinions has an educational component for the staff attorneys even if the opinions are ultimately withdrawn. In response to Commissioner Murphy, Staff Attorney Gramitt stated that this draft advisory opinion would not be used as precedent. Executive Session. At 9:31 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on August 8, 2017, pursuant to R.I. Gen. Laws § 42-46-5(2) and (4). 2 In re: Maxine Cavanagh, Complaint No. 2017-3, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. Interview of and discussion re: Legal Counsel Applicant. 4. Antonio S. Fonseca v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC2017-3591, pursuant to R.I. Gen. Laws § 42-46-5(a)(2). 5. Motion to return to Open Session. Before convening in Executive Session, Chair Cheit noted that the affected Legal Counsel applicant received notice of and waived his right to have his interview take place in Open Session. The Commission reconvened in Open Session at 10:39 a.m. The next order of business was: Motion to seal minutes of Executive Session held on September 12, 2017. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To seal minutes of the Executive Session held on September 12, 2017. 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.Unanimously voted to approve the minutes of the Executive Session held on August 8, 2017. 2. Unanimously voted (6-0) in the matter of In re: Maxine Cavanagh, Complaint No. 2017-3, that probable cause does not exist to believe that the Respondent violated the Code of Ethics as alleged in the Complaint. 3. Interview of and discussion regarding Herbert F. DeSimone, Jr., Esq., for the position of Legal Counsel to the Commission. 4. Received a litigation update in the matter of Antonio S. Fonseca v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC2017-3591. The next order of business was: Discussion of and potential decision re: Search for Legal Counsel Chair Cheit invited the Commissioners to express their thoughts regarding the interview of Attorney DeSimone for the position of Legal Counsel to the Commission. Commissioner Bennett stated that he is comfortable with selecting Attorney DeSimone for said position. Commissioners Salk and Antone concurred. Chair Cheit noted that Attorney DeSimone possesses the relevant experience. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Antone, it was unanimously VOTED: To extend an offer for the position of Legal Counsel to the Commission to Herbert F. DeSimone, Jr., Esq. The next order of business was: Director’s Report. Executive Director Willever reported that there were six (6) complaints and two (2) litigation matters pending. He stated that nine (9) APRA requests were received since the last meeting, all of which were granted within one business day. The next order of business was: Report from Commission staff, and discussion, regarding codification and reformatting of Commission Regulations to conform to requirements of amended Administrative Procedures Act for inclusion in a uniform Rhode Island Code of Regulations (RICR). Staff Attorney Gramitt addressed the Commission and stated that Staff Attorney Popova Papa will be assisting him with this project. By way of background, he explained that, last year, the General Assembly significantly amended the Administrative Procedures Act (APA). He further explained that one change that will impact the Commission is the requirement that agencies uniformly codify their regulations. Staff Attorney Gramitt informed that every agency will be required to renumber and reformat their regulations in a uniform manner similar to the way in which the Federal Government does. He stated that this project must be completed by December of 2018. Staff Attorney Gramitt explained that he and Staff Attorney Popova Papa will be meeting with a representative from the Office of the Rhode Island Secretary of State to assist in this transition. Staff Attorney Gramitt proposed the different phases of the project. Phase I involves renumbering and reordering the Code provisions with no substantive changes to their content. There will be four subcategories of focus under Phase I: (1) the Code of Ethics; (2) procedures; (3) financial disclosure; and (4) the Ethics Commission. Under Phases II and III, the Staff can work to improve the Code. Specifically, Phase III would be a multi-year project aimed at rewriting definitions, eliminating internal inconsistencies between various provisions, and making the Code easier to use and understand. Chair Cheit expressed concern over the renumbering component of this project. He stated that, unless there is some way to retain the current numbering, the Commission and Staff would need to cite to the former Code provisions as well as the new. Chair Cheit also stated that a new numbering system would render it impossible to use or look up past advisory opinions by Code citations. Staff Attorney Gramitt informed that these issues will be discussed with the representative from the Secretary of State’s Office and that the Staff is working on a solution to this particular issue. He added that he will provide updates to the Commission going forward. The final order of business was: New Business. There was no new business. At 10:52 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________Robert A. Salk Secretary