Minutes 9-12-23 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION September 12, 2023 The Rhode Island Ethics Commission held its 8th meeting of 2023 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, 2023, 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: Marisa A. Quinn, Chair Lauren E. Jones Holly J. Susi, Secretary Hugo L. Ricci, Jr. Frank J. Cenerini Matthew D. Strauss The following Commissioner was not present: Emma L. Peterson. Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Jason Gramitt, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Lynne M. Radiches, Staff Attorney/Education Coordinator; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Peter J. Mancini, Gary V. Petrarca, and Kevin Santurri. At 9:05 a.m., the Chair opened the meeting. The first order of business was: Administration of Oath of Office to the Honorable Frank J. Cenerini. Chair Quinn administered the Oath of Office to Commissioner Frank J. Cenerini. He addressed the Commission and spoke of his legal background and experiences as an attorney and jurist. The next order of business was: Approval of minutes of the Open Session held on July 25, 2023. Upon motion made by Commissioner Jones and duly seconded by Commissioner Ricci, it was VOTED: To approve the minutes of the Open Session held on July 25, 2023. AYES: Marisa A. Quinn; Lauren E. Jones; Hugo L. Ricci, Jr.; and Matthew D. Strauss. ABSTENTIONS: Frank J. Cenerini and Holly J. Susi. The next order of business was: Director’s Report: Status report and updates. Executive Director Gramitt stated that with the two new Commissioners, the total number of members is seven. He informed that there are two additional appointments to be made, one of which is a direct gubernatorial appointment and the other of which is an appointment from the House Minority Leader’s list of nominations. Executive Director Gramitt noted that today’s meeting is being livestreamed. He informed that the agenda and meeting materials are available on the Commission’s website. Executive Director Gramitt noted that only Open Session will be livestreamed, after which the livestream will be closed while the Commission convenes in Executive Session. At the conclusion of Executive Session, the Commission will resume livestreaming Open Session and report out those actions taken in Executive Session. Executive Director Gramitt informed that a written report of actions taken in Executive Session will be posted on the website after the meeting concludes. In response to Commissioner Jones, Executive Director Gramitt informed that recordings of Commission meetings are archived and saved in the cloud, and they are available to the public upon request. In response to Commissioner Susi and Chair Quinn, Executive Director Gramitt explained that livestream recordings of the Commission’s meetings may be made available on the Commission’s website as many other state agencies are doing. In response to Commissioner Strauss, Executive Director Gramitt stated that there is little to no cost to do so. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To post livestream videos of Commission meetings on the Commission’s website. In response to Commissioner Jones, Executive Director Gramitt stated that the meeting videos will be link-accessible. a.) Complaints and investigations pending There are 10 complaints pending, six of which are substantive in nature and under investigation and four of which are staff-initiated financial disclosure complaints. Executive Director Gramitt explained that substantive complaints allege violations of the conflict-of-interest provisions of the Code. With respect to the financial disclosure complaints, Executive Director Gramitt informed that the number of non-filers at the start of the summer was 247. He further informed that thanks to the hard work and efforts of Financial Disclosure Officer Michelle Berg and Commission Investigators Gary Petrarca and Kevin Santurri, that number has been reduced to four, and the compliance rate is now at 99.9%. Executive Director Gramitt noted Investigator Petrarca’s retrieval of a financial statement from a filer incarcerated at the ACI as an example of the Staff’s efforts to obtain compliance. In response to Chair Quinn, Executive Director Gramitt stated that a common theme among non-filers is that they do not think they have to file despite the letters and reminder notices they receive. He added that other reasons for non-filing include medical issues and unique circumstances, which are taken into consideration when complaints are prepared for filing. b.) Advisory opinions pending There are eight advisory opinions pending, five of which have been noticed for today’s meeting. c.) Access to Public Records Act requests since last meeting There were four APRA requests received since the last meeting, three of which were granted within one business day, and one of which required clarification and was granted in two days. d.) Financial Disclosure [Covered under “complaints and investigations pending” above.] e.) Ethics Administration/Office Update Executive Director Gramitt informed that the staff continues to work with DoIT on the recusal module of the new case management system. He further informed that former Administrative Assistant Tara Olsen resigned from her position at the Commission to accept another job opportunity. Executive Director Gramitt stated that the interview process to fill the vacancy has started. The next order of business was: Election of Commission Vice Chair Commissioner Susi nominated Commissioner Jones as Vice Chair. Upon motion made by Commissioner Susi and duly seconded by Commissioner Ricci, it was VOTED: To elect Lauren E. Jones as Commission Vice Chair. AYES: Marisa A. Quinn; Frank J. Cenerini; Hugo L. Ricci, Jr.; Matthew D. Strauss; and Holly J. Susi. ABSTENTION: Lauren E. Jones. 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: Anthony DeSisto, Esq., the Town Solicitor for the Town of Little Compton, who is also legal counsel to the Rhode Island Coastal Resources Management Council, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both capacities. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. The Petitioner addressed the Commission and informed that he had also sought advice from the Rhode Island Supreme Court Ethics Advisory Panel which reached the same conclusion as does the instant draft opinion. In response to Commissioner Jones, the Petitioner stated that he would recuse as both Legal Counsel and Solicitor if the CRMC is an applicant or if Little Compton appeals a CRMC decision. Upon motion made by Commissioner Susi and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion to Anthony DeSisto, Esq., the Town Solicitor for the Town of Little Compton, who is also legal counsel to the Rhode Island Coastal Resources Management Council. The next advisory opinion was that of: Mark Nimiroski, a member of the Tiverton Wastewater District Board of Directors, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from accepting the position of Executive Director of the Tiverton Wastewater District, provided that he resigns from the Board of Directors upon accepting the position. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present along with Leroy Kendricks, PE, Chairman of the Tiverton Wastewater District Board of Directors (“Board”), and Attorney David Petrarca, Legal Counsel to the Board. The Board’s Vice Chairman, Bill Vanora, was in attendance. The Petitioner addressed the Commission and respectfully disagreed with the Staff’s recommendation and deferred to Board Chairman Kendricks and Attorney Petrarca to provide an explanation. Mr. Kendricks addressed the Commission and provided some history and background of the Wastewater District (“District”) and his role on the Board. He explained the projects that are currently underway and those to be developed as well as the various issues that the District is facing. Mr. Kendricks further explained the role of the Executive Director and the qualifications and skills required for the position. He informed that there have been seven Executive Directors over the past nine years and the reasons for each one’s departure. Mr. Kendricks explained that the District’s difficulties in finding a qualified candidate stem from its inability to pay a salary commensurate with industry standard, its location, and the limited pool of qualified applicants. He represented that, since the last Executive Director left, there have been 16 applicants but no one close to meeting the necessary qualifications. Mr. Kendricks went on to discuss the critical issues that require immediate attention, explaining that these normally would be handled by the Executive Director but are now falling on the volunteer Board members and the staff to address. Following Mr. Kendricks’ presentation, Attorney Petrarca addressed the Commission on behalf of the Board. He explained that the Executive Director position has been vacant since August of 2022 and that the District has continued its search since that time. He informed that the person serving in that position from September through May 2023 was understood to be serving on interim basis. The sixth and most recent Executive Director began on May 25, 2023, and left the position on July 20, 2023. Attorney Petrarca distinguished Advisory Opinions 2014-18 and 2012-31, cited in the draft, from the instant facts. Discussion ensued regarding the Code of Ethics’ revolving door prohibition in Commission Regulation 520-RICR-00-00-1.5.1 and the exception outlined therein that allows a public official to accept an appointment or election that requires approval by the body of which he is a member when the Commission is satisfied that the denial of the appointment or election would create a “substantial hardship” for the public body and grants its approval. The discussion centered on what factors the Commission should consider when deciding when the substantial hardship should apply to a given set of circumstances. The Commission’s discussion included the adequacy of the District’s efforts in seeking qualified candidates for the position and the immediacy of the issues. Upon motion made by Commissioner Ricci and duly seconded by Commissioner Susi, it was VOTED: To issue an advisory opinion to Mark Nimiroski, a member of the Tiverton Wastewater District Board of Directors. AYES: Marisa A. Quinn; Hugo L. Ricci, Jr.; and Holly J. Susi. NOES: Frank J. Cenerini; Lauren E. Jones; and Matthew D. Strauss. The motion failed. Legal Counsel DeSimone explained that four affirmative votes are needed to approve and issue the advisory opinion. Executive Director Gramitt informed that the Commission may make an alternative motion or no advisory opinion will issue. Legal Counsel DeSimone advised that the Commission may move either to amend the draft opinion to state that the Petitioner is not prohibited from accepting the position, or to continue the matter to a later date after the Board has updated the Staff as to its continuing efforts to fill the Executive Director position. Upon motion made by Commissioner Jones and duly seconded by Commissioner Cenerini, it was VOTED: To amend the advisory opinion to Mark Nimiroski, a member of the Tiverton Wastewater District Board of Directors, to find that a substantial hardship exists. AYES: Frank J. Cenerini; Lauren E. Jones; and Matthew D. Strauss. NOES: Marisa A. Quinn; Hugo L. Ricci, Jr.; and Holly J. Susi. The motion failed. Commissioner Jones commented that the District needs an answer before the end of November and queried whether the matter could be continued to a later date to allow the District to continue its efforts without the need for the Petitioner to renew his request for an advisory opinion. Staff Attorney Radiches proposed editing the draft to incorporate any updates provided by the District rather than submitting a new draft. Discussion ensued regarding an appropriate date for rehearing the matter. Board Chairman Kendricks requested October 17, 2023, to allow the District adequate time to heed the Commission’s comments. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To continue this matter to October 17, 2023. The next advisory opinion was that of: Shaun P. Galligan, a member of the Warwick School Committee, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in collective bargaining negotiations with the Warwick Teachers’ Union, given that his brother is a principal within the Warwick School Department and, although the brother is not a member of the Warwick Teachers’ Union and has his own employment contract separate from the Union contract, the brother’s salary percentage increase is based on the annual teachers’ salary percentage increase negotiated under the Warwick Teachers’ Union contract. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. He addressed the Commission and inquired whether he may negotiate and/or vote on language in the contract that would not result in a financial benefit to his brother or any other person affected by the contract. Staff Attorney Popova Papa informed the Commission that this new inquiry arose this morning. She explained that, under the nepotism regulation, the Petitioner may vote on the bottom-line budget as a whole, but the regulation does not delineate matters that are appropriate for negotiation. Staff Attorney Popova Papa informed that the concern with allowing negotiations only as to certain items is that such items or discussions may affect other parts of the contract that would financially impact a family member, thereby making recusal difficult at such a point. Commissioner Jones concurred, stating that there would be no practical way to separate the issues. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To issue an advisory opinion to Shaun P. Galligan, a member of the Warwick School Committee. The next advisory opinion was that of: Catherine Lynn, a member of the Smithfield Planning Board, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in Planning Board discussions and decision-making relative to matters in which Timothy Kane appears or presents evidence or arguments, given that Mr. Kane served as the closing attorney for the buyer of a house recently sold by the Petitioner. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present but had agreed to the Commission proceeding in her absence. Upon motion made by Commissioner Ricci and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion to Catherine Lynn, a member of the Smithfield Planning Board. The final advisory opinion was that of: Wayne Zina, a Correctional Officer for the Rhode Island Department of Corrections, who in his private capacity owns and operates WSZ Plowing LLC, requests an advisory opinionregarding whether he is prohibited by the Code of Ethics from bidding in his private capacity on a winter vendor contract to provide snow plowing services to the State of Rhode Island. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was not present but had agreed to the Commission proceeding in his absence. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To issue an advisory opinion to Wayne Zina, a Correctional Officer for the Rhode Island Department of Corrections, who in his private capacity owns and operates WSZ Plowing LLC. At 11:14 a.m., upon motion made by Commissioner Jones 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 July 25, 2023, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) Motion to return to Open Session. Executive Director Gramitt reminded all in attendance that the Open Session portion of the livestream meeting will close for Executive Session and will be reactivated for Open Session after Executive Session concludes. At 11:15 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: Voted (4-0) to approve the minutes of the Executive Session held on July 25, 2023. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; Lauren E. Jones; Hugo L. Ricci, Jr.; and Matthew D. Strauss. ABSTENTIONS: Frank J. Cenerini and Holly J. Susi.] Unanimously voted (6-0) to return to Open Session. Upon motion made by Commissioner Jones and duly seconded by Commissioner Strauss, it was unanimously VOTED: To seal the minutes of the Executive Session held on September 12, 2023. The next order of business was: New Business proposed for future Commission agendas and general comments from the Commission. There were none. At 11:17 a.m., upon motion made by Commissioner Susi and duly seconded by Commissioner Jones, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, ______________________________ Holly J. Susi Secretary