Minutes 2-15-22 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION February 15, 2022 The Rhode Island Ethics Commission held its 2nd meeting of 2022 in Zoom webinar format at 9:00 a.m. on Tuesday, February 15, 2022, pursuant to the notice published at the Commission offices, the State House Library, and electronically with the Rhode Island Secretary of State.[1] The following Commissioners were present: Marisa A. Quinn, Chair Lauren E. Jones Arianne Corrente, Vice Chair Matthew D. Strauss Kyle P. Palumbo, Secretary Holly J. Susi J. Douglas Bennett 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 Peter J. Mancini and Gary V. Petrarca. At 9:00 a.m., the Chair opened the meeting. The first order of business was: Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues. Executive Director Gramitt advised that the meeting is being held remotely pursuant to Governor McKee’s issuance of Executive Order 22-17 on February 14, 2022. He explained that the meeting hosts will promote participants to panelists when their matters are called on the agenda. Executive Director Gramitt explained that following Open Session, everyone will leave, Open Session will be temporarily closed, and the Commission will convene in Executive Session. At the conclusion of Executive Session, the Commission will reconvene in the same Open Session for a brief report out of the matters addressed in Executive Session and to adjourn. Executive Director Gramitt further explained that all meeting materials are available on the Commission’s website, and the report out will be posted thereon shortly after the meeting adjourns, or members of the public may call or email the Commission’s office regarding the report out. The next order of business was: Approval of minutes of the Open Session held on January 11, 2022. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To approve the minutes of the Open Session held on January 11, 2022. 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 advised that some members of the Commission staff had COVID, but no transmissions occurred in the office and their symptoms were mild. He informed that the Commission is meeting remotely pursuant to an executive order issued yesterday, but it will expire on February 21, 2022, which is before the Commission’s next meeting. He does not anticipate it will be extended, given that there currently are bills before the legislature to amend the Open Meetings Act to allow remote meetings. Executive Director Gramitt stated that it is also unlikely that the legislature would take action before the Commission’s next meeting and the Commission should prepare for an in-person meeting in March. b.) Complaints and investigations pending There is one active, non-filing complaint pending which will be noticed for an adjudication at the Commission’s next meeting. c.) Advisory opinions pending There are six advisory opinions pending, with four noticed for today’s meeting. d.) Access to Public Records Act requests since last meeting There were ten APRA requests received since the last meeting, all of which were granted within the same business day. Executive Director Gramitt informed that three requests related to complaints, three related to financial disclosure, three related to advisory opinions, and one related to past meeting materials. Executive Director Gramitt informed that the staff is working on the 2021 financial disclosure filing season and the 2021 Financial Statement is now available for online filing. He stated that the staff will send out the blue letters with PIN information in March, but online filing is available now. e.) Administration/Office Updates Executive Director Gramitt informed that the Commission’s new website is live and operational. He explained that the website has the capability to be translated into multiple languages. He further explained that the content has been updated and navigation is more user-friendly. Executive Director Gramitt stated that the staff welcomes any input or suggestions for the website. Executive Director Gramitt informed that there are currently two vacancies with the Commission’s staff, one of which is the Chief Investigator position, and the other is an administrative assistant position. He expects these positions to be posted this week and to be filled by next month. Executive Director Gramitt stated that office and hearing room renovations and upgrades are expected to begin in April. Commissioner Corrente expressed positive comments regarding the new website. Executive Director Gramitt commended Michelle Berg, the Commission’s Financial Disclosure Officer, who also assists with technical issues, for her hard work on the new website. Chair Quinn noted that she had received complimentary feedback from an individual regarding a recent interaction with Senior Staff Katherine D’Arezzo for advice. The next order of business was: Advisory Opinions. The advisory opinions were based on draft advisory opinions prepared by CommissionStaff 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: Millicent McGinnes, the Town Clerk for the Town of New Shoreham, who in her private capacity is the owner and operator of Ballard’s Oil Company, Inc., requests an advisory opinion regarding whether the Code of Ethics prohibits her from bidding in her private capacity on a contract, through an open and public bidding process, to provide heating oil services to the Town. Commissioner Jones recused from consideration of and voting in this matter. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Commissioner Bennett referred to two past advisory opinions, one in which the Commission found that a Town Council member who owned a fence company could not vote on the Town project at issue, and the other in which the Commission found that a Westerly School Committee member who owned a t-shirt company could not bid on a contract with or sell her products to the Town. Commissioner Bennett inquired how these cases are distinguishable from the instant matter. In response, Staff Attorney Radiches explained that, here, the Petitioner is not in a position to help or hurt herself financially and will not solicit business for herself. In response to Commissioner Bennett, Staff Attorney Radiches stated the Code of Ethics is applied consistently but the facts of each case differ. In response to Commissioner Palumbo, the Petitioner stated that Ballard’s Oil has been servicing the Town for three consecutive terms, for a total of six years, and that she asked for an advisory opinion now because she recently changed roles from Deputy Clerk to Town Clerk. In further response to Commissioner Palumbo, the Petitioner stated that she has been the only bidder for the past two bidding cycles. In response to Commissioner Palumbo, Staff Attorney Radiches explained that the professional services contemplated by R.I. General Laws § 36-14-5(h) include attorneys, physicians, land surveyors, psychologists, engineers, and the like. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Bennett, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Millicent McGinnes, the Town Clerk for the Town of New Shoreham, who in her private capacity is the owner and operator of Ballard’s Oil Company, Inc. Commissioner Jones returned to the meeting. The next advisory opinion was that of: Karen Bernardino, the Fiscal Clerk for the Town of North Smithfield, requests an advisory opinion regarding whether what restrictions, if any, the Code of Ethics places upon her, given that her spouse recently accepted a part-time position as the Electrical Inspector for the Town of North Smithfield. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Susi, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Karen Bernardino, the Fiscal Clerk for the Town of North Smithfield. The next advisory opinion was that of: Eugene Quinn, a member of the East Greenwich School Committee, requests an advisory opinion regarding whether the Code of Ethics prohibits him from having access to, and utilizing, East Greenwich School District’s employees’ payroll data to develop long-term forecasts for the East Greenwich School District’s finances and enrollment, given that some of the payroll data may contain confidential and/or nonpublic information. Staff Attorney Giusti presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Chair Quinn, Staff Attorney Giusti explained that the opinion would guide any use of confidential information provided by the Town. Chair Quinn noted that the Commission would not be making a judgment as to whether the Town should disclose the information, only as to whether a conflict of interest would exist under the Code if the Petitioner utilized said information. The Petitioner informed that the Superintendent may revisit the initial denial depending on the outcome of the advisory opinion. Commissioner Bennett commended the Petitioner’s efforts and expressed his hope that the Town would make full use of his skills. Commissioner Jones noted the importance of recognizing the efforts of those with specialized skills who serve on public bodies. In response to Chair Quinn, Executive Director Gramitt reiterated that the Commission takes no position as to whether the data should be provided to the Petitioner, only that the Petitioner must operate within the confines of the Code of Ethics in the event it is provided to him. In response to Chair Quinn, the Petitioner represented that the School District’s legal counsel is aware of the limitations of the opinion and has been involved in every step of the process. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Eugene Quinn, a member of the East Greenwich School Committee. The final advisory opinion was that of: Alayne White, a member of the Bristol Zoning Board, requests an advisory opinion regarding whether the Code of Ethics prohibits her, in her private capacity, from participation in various activities relative to a proposed mill redevelopment in the Town of Bristol. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. Commissioner Bennett advised the Petitioner to be cautious about participating in discussions that might arise outside the context of the Zoning Board. In response to Commissioner Susi, the Petitioner stated that she is a second alternate member of the Zoning Board. In further response to Commissioner Susi, Staff Attorney Popova Papa explained that zoning change matters are appealed directly from the Planning Board to the Town Council and do not go before the Zoning Board. The Petitioner informed that she spoke with the Town Solicitor, who did not feel that it was necessary for her to request an advisory opinion, but she wanted to be sure, given that Bristol is a small town and she tends to speak out in her capacity as a private citizen and business owner. Commissioner Bennett further advised the Petitioner to seek advice directly from the Ethics Commission rather than relying solely on a solicitor’s advice. In response to Commissioner Jones, the Petitioner stated that her newspaper submissions do not relate to zoning matters, nor do they reference her public position. Chair Quinn advised the Petitioner to ensure that her submissions reflect that she is writing in her private capacity as a citizen or business owner. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Alayne White, a member of the Bristol Zoning Board. The next order of business was that of: Discussion and vote to approve the University of Rhode Island’s Policy on Public-Private Partnership in Research and Development, pursuant to Rhode Island Gen. Laws § 16-59-26(c)(2). Chair Quinn recused from consideration of and voting in this matter. Theodore Myatt, Associate Vice President for Research Administration at the University of Rhode Island (“URI”), and Attorney Peter Harrington, Associate General Counsel at URI, were present via video links. Executive Director Gramitt addressed the Commission and referred to his memorandum explaining the background of R.I. Gen. Laws § 16-59-26 with respect to exemptions for certain state employees/professors at the state’s three educational institutions from the conflict-of-interest provisions of the Code of Ethics relative to certain private, financial interests that such persons have in their work, research, and/or inventions. Executive Director Gramitt explained that the statute provides that each instance in which the educational institution has applied an exemption must come before the Ethics Commission for review, but the Commission does not have the statutory power to approve or veto an exemption but only to refer the matter back to the institution for further review where necessary. Executive Director Gramitt further explained that the statute requires each educational institution to draft formal procedures or policies setting forth its process for granting exemptions, and those procedures must come before the Ethics Commission for its vote. Executive Director Gramitt informed that legislation was passed in 2019 transferring governance from the Rhode Island Council on Postsecondary Education to a Board of Trustees. He stated that Mr. Myatt and Attorney Harrington have consulted with him regarding the proposed revisions to the University’s policy for granting exemptions, and this policy, having already been approved by the Board of Trustees, is now before the Commission for its final vote before the policy can be implemented. He stated that the proposed changes in the policy largely involve implementing a multi-level review for granting exemptions, beginning with a Conflict-of-Interest Committee, and ending with the Board of Trustees. In response to Commissioner Jones, Executive Director Gramitt stated that each exemption must still come before the Commission for its review, with the Commission’s power limited to sending the matter back to the educational institution for further review and public hearing if necessary. In response to Commissioner Palumbo, Executive Director Gramitt informed that the proposed revisions are procedural in nature and do not involve any substantive changes. In further response to Commissioner Palumbo, Executive Director Gramitt stated that the items on page five of the memorandum are essentially a layperson’s explanation of the key Code provisions that apply to this issue. Upon motion made by Commissioner Jones and duly seconded by Commissioner Bennett, it was unanimously VOTED: To approve the University of Rhode Island’s Policy on Public-Private Partnership in Research and Development, pursuant to Rhode Island Gen. Laws § 16-59-26(c)(2). Chair Quinn returned to the meeting. The next order of business was: Review and discussion of scope and interpretation of financial disclosure requirements relating to real estate interests: R.I. Gen. Laws § 36-14-17(b)(3) and Commission Regulation 520-RICR-00-00-4.6. Executive Director Gramitt referred to the recent complaint that the Commission dismissed involving the real estate question on financial disclosure statements and whether a buyer’s interest in a purchase and sales agreement must be disclosed pursuant to R.I. Gen. Laws § 36-14-17(b)(3) and Commission Regulation 520-RICR-00-00-4.6. He explained that the Investigative Report in that matter concluded that said interest does not appear to be the type of interest requiring disclosure but, even if the Commission were inclined to adopt another interpretation, the language on the form does not adequately put a filer on notice of this requirement. Executive Director Gramitt explained that the purpose of this agenda item is for the Commission to engage in discussion, not rulemaking. He stated that if the Commission is inclined to require disclosure of said interest, then it will need to initiate rulemaking, but if not, the staff can amend the question and instructions to clarify what is required. He informed that he prepared a memorandum on this issue which is included in the Commissioners’ binders. Executive Director Gramitt informed the Commission that, in the case that was dismissed, the staff did not find any other states that enumerate a buyer’s interest in a purchase and sales agreement as requiring disclosure. Commissioner Bennett informed that Rhode Island is a title state and a buyer does not receive ownership until title passes. Commissioner Susi referred to item number two on the handout with respect to leases for long terms which require disclosure but do not confer title. She stated that some purchase and sales agreements involve significant sums of money that could be tied up for extended periods of time. Commissioner Palumbo concurred and explained that there are many different kinds of purchase and sales agreements, some simple and some more complex. He encouraged the Commission to consider in its discussion and analysis what benefit would inure to the public from knowing about a purchase and sales agreement disclosed by a public official/employee. Commissioner Palumbo added that an interest in a purchase and sales agreement is not accessible to the public. Chair Quinn queried whether there is anything in a purchase and sales agreement that should not be disclosed. Commissioner Bennett informed that purchase and sales agreements, leases, and options all confer different rights or interests but that a purchase and sales agreement does not confer much on a buyer until it is fully executed. Executive Director Gramitt added to Commissioner Palumbo’s comment that the Commission needs to consider whether it is important for the Commission to know information about a purchase and sales agreement disclosed on a financial statement and whether a purchase and sales agreement might create a conflict on the part of the filer. Commissioner Jones stated that the relationship with the individual with whom the filer has entered into a purchase and sales agreement may create a conflict. In response to Chair Quinn and Commissioners Corrente and Susi, Executive Director Gramitt informed that the Commission does not have to engage in immediate rulemaking, and the staff can provide further research and information on this issue before the Commission decides. Commissioner Corrente queried whether the Commission could resume its past discussions regarding financial disclosure generally and examine the form for areas needing changes or adjustments rather than focus only on this single issue. Commissioner Bennett offered to contact legal counsel at the Real Estate Association to assist the Commission staff in its research. Commissioner Palumbo proposed starting with Executive Director Gramitt’s past memorandum relating to financial disclosure reform. Executive Director Gramitt stated that he will resubmit the memorandum to the Commission as part of further discussions. In response to Commissioner Jones, Executive Director Gramitt stated that he also would have the staff engage in research regarding the types and meaning of various real estate interests. The next order of business was: New Business proposed for future Commission agendas and general comments from the Commission. There was none. At 10:50 a.m., upon motion made by Commissioner Corrente and duly seconded by Commissioner Susi, it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on January 11, 2022, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) Motion to return to Open Session. At 10:57 a.m., the Commission reconvened in Open Session. The next order of business was: 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, as amended, of the Executive Session held on January 11, 2022. 2. Unanimously voted (7-0) to return to Open Session. At 10:59 a.m., upon motion made by Commissioner Palumbo and duly seconded by Commissioner Jones, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On January 6, 2022, Governor Daniel McKee issued Executive Order 22-01 that, due to the ongoing COVID-19 health crisis, relieved public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act. Pursuant to the issuance of Executive Order 22-17 by Governor Daniel McKee, on February 14, 2022, said relief was extended through February 21, 2022.