The Commission's Criteria For Complaints Practically Negates The Purpose Of The Commission. Consider the following rulings:
In March of 1999, the state Ethics Commission cleared Chief Family Court Judge Jeremiah S. Jeremiah, Jr. of alleged ethics violations involving his office building. The commission found insufficient evidence that Jeremiah "knowingly and willfully" violated the state Code of Ethics by helping obtain a $56,000.00 grant for a group that used some of it to pay him rent.
The commission also concluded that Jeremiah did not violate the code by signing court orders in two divorce cases in which parties were represented by another tenant of the judge. "The statute requires that in order for there to be a valid complaint, there has to be probable cause that someone willfully and knowingly committed the violation." Melvin L. Zurier, the vice-chairman of the commission said later, "The evidence does not show that."
DeRobbio said, "the commission relied on the same standard it used last year when it threw out ethics charges against former Central Falls Mayor Thomas Lazieh." Lazieh had been accused of improperly awarding himself $17,000.00 in vacation pay before leaving office in 1996. The commission ruled that Lazieh did indeed draft a policy in his last year in office that allowed him to receive the money. But the commissioners said he was not "knowingly and willfully" seeking personal gain when he wrote the policy, and thus hadn't violated conflict-of-interest laws.
Since no one can absolutely testify to the inner workings of someone's else's mind, it appears the only way one can be found guilty of ethics violations in Rhode Island is if the guilty party is willing to admit they knowingly and willfully committed a wrong. An example is the complaint from Donna Parris dealing with Judge Jeremiah and former Central Falls Mayor Thomas Lazieh.
Edward Achorn's article, "Is 'R.I. Ethics' An Oxymoron?" will help you understand the underlying issues that resulted in the Irons Ruling. Read Irons vs. Rhode Island Ethics Commission the Rhode Island Supreme Court ruling that sparked this debate
The response from Operation Clean Government:
July 1, 2007 The decision handed down today by the Rhode Island Supreme Court in favor of Mr. Irons has effectively rendered the Ethics Commission powerless. By ruling in favor of the plaintiff in Irons vs. Rhode Island Ethics Commission, this Court has determined that state legislators are shielded by the Rhode Island Constitution's "speech in debate" clause.
"This is yet another dark day for ethics in Rhode Island. The Rhode Island Supreme Court has effectively neutered the Ethics Commission,"
says Larry Valencia, President of Operation Clean Government, a government watchdog group that filed the ethics complaint against Irons in 2004.
Superior Court Judge Darigan had ruled that former Senate President William Irons was immune from prosecution based on the "speech in debate" clause of the Rhode Island Constitution. Valencia also says,
"We feel the majority opinion was flawed, but we realize the only recourse now is going to be legislative action."
Operation Clean Government commends Justice Suttell, who dissented, for looking at the intent of the voters and the participants in the 1986 Constitutional Convention. Valencia adds
"The Convention participants were clearly moved to rein in the rampant corruption of that time, and it is regrettable that they were ignored by the majority"
Operation Clean Government calls on the leadership of the Rhode Island General Assembly to support H6070 or a similar bill. House bill 6070 is a proposed constitutional amendment that would provide that the Ethics Commission would have jurisdiction over the members of the General Assembly notwithstanding the "speech in debate" provisions of Article VI, Section 5 of the Constitution. It would restore the ability of the Ethics Commission to investigate, and if necessary, prosecute General Assembly members for participating and voting on legislation where they have a clear conflict of interest.
The General Assembly has not yet adjourned this year. There is time for Speaker Murphy, Majority Leader Fox and Senate President Paiva Weed to schedule hearings and to pass this necessary legislation. Passage of this bill places this amendment on the 2010 ballot, allowing the citizens of Rhode Island to decide whether or not legislators deserve immunity when they use their vote to violate our ethics laws.
2009 - With new disclosures of conflicts of interest, fraud and mismanagement at the Rhode Island Resource Recovery Corporation (RIRRC), it is astonishing that law-enforcement officials say they cannot do anything about the alleged corruption. One would think that the Rhode Island Ethics Commission could play a role, yet with recent court rulings it is essentially a toothless body lacking the tools needed to fight corrupt public officials. That's one reason that government watchdog groups and citizens demanded separation-of-powers legislation to remove conflicted legislators from state boards and commissions. However, with this recent news about the scope of shady dealings at the Rhode Island Resource Recovery Corporation (RIRRC), separation of powers alone is not enough.
The purpose of appointing qualified individuals to state and local boards and commissions is for them to serve as a check and balance for the decisions made by those in authority. In Rhode Island, when it comes to politics and power, why is it that the politically connected appear to be the ones primarily selected for these important positions? For example, several years before Governor Carcieri appointed Warwick Mayor Scott Avedisian in April 2006 to serve on the Rhode Island Resource Recovery Corporation (RIRRC) board, the mayor had appointed the then-executive director's spouse to the Warwick Planning Board, serving as chairman. In October 2006, the mayor appointed the then-director to the Warwick Municipal Retirement board. Both were avid supporters of the mayor. When improprieties started to surface, the mayor resigned from the RIRRC board. The very day that the RIRRC preliminary audit report was released the former director resigned from the Warwick Retirement Board.
Later it was disclosed that pension-fund improprieties were discovered at RIRRC. Keep in mind as members of the Warwick retirement board individuals are responsible for overseeing hundreds of millions of dollars in pension funds. I wrote about other member conflicts on this board in my Aug. 12 op-ed, "Last chance to stop latest Warwick folly." There weren't other qualified individuals in the state or in Warwick who could have served on each respective board? My pointing out these facts is not meant to cast blame on the governor or the mayor for the alleged misdeeds at RIRRC or imply that similar misdeeds have occurred with the Warwick Retirement Board. However, it does demonstrate that the good-old-boy and -girl network is alive and well and leads one to wonder: Was the governor aware of these relationships before he made his appointment? Besides, how could the mayor and former RIRRC director believe that each could perform proper due diligence in these positions of oversight on one another's boards while these cozy relationships existed? It's one reason I voted against the mayor's appointment of former Warwick City Councilwoman Sue Steinhouse to the Warwick Zoning Board in 2008. She works in the governor's office and is on several state and local boards already. There are plenty of qualified individuals in Warwick who could do the job without the potential conflict.
Is it ethical that on some planning and zoning board members are also real-estate professionals? Is it fair to other real-estate professionals competing for business when they discover an individual on the board has acquired the listing for projects the board approved months earlier?
The Warwick Beacon recently reported that a council member has proposed legislation, later withdrawn, that would have mandated that future police and fire chiefs be hired from within Warwick's ranks. The ordinance could have directly benefited his son, who is a captain in the Police Department in line to become chief. In all likelihood, the council member will be allowed to submit the legislation on the basis of "class-exemption" clause, which permits this activity as long as the legislation would also benefit a large enough class of people. It is why a teacher working in another district can serve on his or her own local school committee and vote on a teacher contract. It permits a member of the General Assembly, who works fulltime as a representative of a state workers labor union, to propose legislation benefiting the union.
With the "quid pro quo" philosophy alive and well in Rhode Island politics, it is only a matter of time before we discover new occurrences of scandal and cronyism in the state, with taxpayers ultimately paying the price. It's time for citizens to demand meaningful new laws that will provide authorities with tools to bring individuals to justice when they betray the public trust. If the state Ethics Commission had the power to identify and limit the cross-pollination of boards and commissions, it would reduce these problems.
Robert Cushman is a former Warwick city councilman and former chairman of the Warwick School Committee.
In his Nov. 14 Commentary piece ("New ethics laws key to fighting Rhode Island corruption"), Robert Cushman discusses a number of important issues regarding separation of powers, ethics, and conflicts of interest in Rhode Island. We believe that those issues merit a response from the "government watchdog groups" he mentions.
We take exception with his statement that, because of a recent Supreme Court decision, the Rhode Island Ethics Commission has become "a toothless body lacking the tools needed to fight corrupt public officials." There is no doubt that the June 29 decision in "William V. Irons vs. The Rhode Island Ethics Commission" made it more difficult for that body to enforce the code of ethics. However, it removed from the commission's jurisdiction only one body (the General Assembly), and only specific acts of members of that body - "core legislative acts," which the court enumerated as "proposing, passing, or voting upon a particular piece of legislation."
It's very important to note that the commission still has the ability to prosecute all other elected officials for violations of the code. And furthermore, the commission has the ability to prosecute members of the Assembly for a wide variety of actions not protected as "core legislative acts," including in the court's words, "speeches delivered outside of the legislature; political activities of legislators; undertakings for constituents; assistance in securing government contracts; republication of defamatory material in press releases and newsletters; solicitation and acceptance of bribes; and criminal activities, even those committed to further legislative activity."
That said, our groups still believe that when the voters passed the Ethics Amendment in 1986 that created the Ethics Commission and saw in that amendment the language "All elected and appointed officials and employees of state and local government, of boards, commissions and agencies, shall be subject to the code of ethics," they never would have perceived that members of the General Assembly would have even a limited immunity from that code due to "the speech in debate" clause in the Rhode Island Constitution. That is why we will be pushing legislation in the 2010 session of the General Assembly to put an amendment on the ballot that would let the voters decide whether legislators should enjoy immunity that no other public officials receive.
Mr. Cushman goes on to suggest that the real solution to the state's problems lies with the "class exception" that exists in the code of ethics. We sometimes refer to it by the section number in the code: 7(b). We couldn't agree more that the "class exception" is a problem. That is why we have long pushed the Ethics Commission to close this and other loopholes in the code. This is not an easy prospect, however, and the commission has shown reluctance to overturn the "class exception" in one singular act.
However, the commission has taken preliminary steps toward this goal by moving toward elimination of one particular loophole in the code. The commission is poised to change its longstanding policy of providing an exception for union members who are also elected officials. Currently public officials who are members of a union in a different city or town are allowed to negotiate contracts with different local affiliates of the same parent union. We support this change in position by the commission in what clearly is a conflict of interest.
However, we must note that the commission is making this change in a way that we think is less than ideal.
First, it is not making a change to the code itself, but rather in a "General Commission Advisory," which is a document to provide guidance to those who might be seeking the commission's advice. Second, the opinion of the commission is based on the "business associate" section of the code, and not the "conflict of interest" section. We feel this is a mistake because this situation is clearly not in keeping with either section. A member of a union is clearly a business associate of other local affiliates of that union. This relationship is particularly strong when the parent union sends professional negotiators into multiple jurisdictions. However, it is also a conflict of interest for a public official to negotiate with an organization of which they are a member.
What the commission is doing, however backward its approach, is to begin closing the loophole that allows people to self-deal. That is what the "class exception" is all about. Our groups did not push the commission to begin closing this loophole by targeting union members. We feel it is equally important that anyone serving as a public official should not be allowed to use his or her official capacity to provide benefits to members of the profession he or she is a part of, no matter what that profession is, and no matter if everyone in that profession benefits equally.
Shutting down the "class exception" is only one part of the puzzle that we need to solve in order to create a more ethical climate in Rhode Island. It's important to remember that we have an ethics system that consists of institutions (the Ethics Commission, the Board of Elections), and processes (the code of ethics, our campaign-finance law) that need to be tended to in order to work properly. We can't run around seeking to make changes without considering the health of the system as a whole. That is why ethics, separation of powers and campaign finance are all related.
Our organizations will continue to insist that appointments are made, and they're in keeping with separation of powers, that the institutions are fully staffed and funded, and attempts to limit their authority are rejected when appropriate. We need to take a holistic approach to cultivating this system.
1-2010: The Senate Rules Committee is considering a proposal to let the state Senate adopt its own conflict-of-interest rules, and police the behavior of its own members. "If that is what the U.S. Senate does, and it is adequate for them, why isn't it adequate for the Rhode Island Senate?'' asks Sen. Christopher Maselli, the Johnston Democrat who chairs the committee. Not everyone is enthralled with the idea.
"Common Cause opposes any plan to have the Rhode Island Senate police itself," says John Marion, executive director of the citizens' advocacy group. "Historically efforts by legislatures to monitor their behavior internally have been unsuccessful. One need look no further than the U.S. Senate, whose Ethics Committee has fallen into a partisan stalemate," Marion said. The proposal was aired for the first time last week at a sparsely attended meeting of the Senate Rules Committee, which is taking its cues from the Senate's $53,019 a year parliamentarian, John Roney, the former senator who authored the "Roney amendment'' allowing the Ethics Commission to impose $5,000 fines on anyone who files a "frivolous" complaint against a politician. It never has.
As a senator in the mid-1990's, Roney told colleagues: "These complaints are all too easily filed...They trigger immense investigations, and they do tremendous damage against whom they are filed." As a lawyer, Roney has also represented numerous clients before the commission, including Secretary of State A. Ralph Mollis, who was fined $3,000 in December 2006 for soliciting contributions from town employees when he was still mayor of North Providence. Maselli said there is no written proposal yet, but Sen. Frank Ciccone, D-Providence, is working on one, and Roney has advised the panel that Rhode Island is the only New England state where lawmakers do not have their own internal conflict-of-interest rules, and lots of states - and Congress - have taken it upon themselves to make sure their members comply. The discussion stems from a June decision by the Rhode Island Supreme Court that effectively removed Rhode Island lawmakers from Ethics Commission scrutiny.
Other lawmakers - including House Majority Leader Gordon Fox - have promised to introduce legislation addressing the current gap. But Maselli said Roney told the Rules Committee he does not believe the Ethics Commission can, at this point, even consider a complaint against a legislator. Maselli said his mind remains open to the alternative Common Cause is proposing: giving voters a chance in November to reinstate the Ethics Commission's authority over lawmakers, but that's months away. Between now and then, "what does somebody do? Should we, at the very least, put something into effect [for] the interim?'' The debate will resume when Senate Rules meets again on Wednesday.
The determination of the Rhode Island power structure to keep the Ethics Commission from operating as an independent body by making it a lackey of the General Assembly in this complaint is astounding. "...this commission needs people that are not as ethically challenged as the present members are... Robert Arruda from OCG
The Boston Lawyer Daniel Small hired by the Commission to investigate conflict-of-interest charges against 3 of its members was fired after the RI Supreme Court said Small could not subpoena a member [Goldberg] and may not practice law in Rhode Island. Justices Leaderberg and Bourcier were sympathetic with the Goldberg faction. There has been an obvious affiliation among the two of them and Justice Goldberg ever since her elevation to the Supreme Court. The courts action makes proper action on the complaints impossible given the 300 day limit mandated.
Small was hired after Commission Director Healey couldn't find a Rhode Island lawyer willing to investigate the ethics complaints. Initially Chief Justice Williams gave the Commission an informed opinion that it could hire Atty. Small. Small was replaced with William C. Maaia, a general practitioner, who was hired without looking at his resume and against recommendations of the Exec. Dir. Martin F. Healey. Maaia himself stated, "Even Ken Starr couldn't come in with less than 50 days and conduct an investigation," and that, "whoever finished the investigation wouldn't have enough time to do much more investigating."
The Commission fired Healey after Supreme Court Justice Williams published his personal opinions titled "Ethics flap is Mr. Healey's Fault" in the Providence Journal and to each member of the Commission. The non-attorney dissenters asked for due process in vain while Williams and Governor Almond welcomed Healey's firing. Williams then doffed his judicial robes to press his case at least 3 times on various radio programs. Williams actions give new meaning to the term "bully pulpit."
"Shame on the Commission for voting to fire Martin Healey.....Healey can leave with pride in a job well done. It's probably the best thing for him, but a great loss to the Citizens of Rhode Island." -- Margaret Matheson
The Commission dropped 2 of the complaints and eventually dropped the complaint against Harwood without giving a reason. 5 of the 9 members [Kirby, Main, Monti-Markowski, Murray and Zurier] said they have conflicts of interest and recused themselves. 2 other members [Goldberg and Flanagan] are hanging back until lawyers decide if they have conflicts. Goldberg is the brother-in-law of Supreme Court Justice Maureen McKenna Goldberg and the brother of former Sen. Robert Goldberg a top state house lobbyist and law partner. Robert Goldberg used to be Senate minority leader and an ally of former Democratic Senate Majority Leader John Bevilacqua. It was Goldberg that brought Atty. Small's challenge to the RI Supreme Court. Goldberg also shot back with ethics complaints against Atty. Small and the Ethics Commission's Director Martin Healey. All talks of recusal were held behind closed doors. Clearly the Commission has become so entwined with the political establishment that it is supposed to oversee that it has become ineffective and investigations are in effect blocked by the power structure.
Goldberg [appointed by John Harwood], Main and, in part, Zurier participated in a hideous decision to derail government reform last spring by repealing bans on gifts to legislatures according to Bob Kerr of the Providence Journal. The Commission struck down the rule and replaced it with one that allows lobbyists to give legislators up to $450 a year in gifts which, according to Justice Weisberger was "undoubtedly too loose."
"The Consequences of such a rule strain credulity, when one considers how much money over the course of only one year can be distributed to not just legislators, but to any public official, from police chief to town council member through the state. Politicians, especially the leadership within the General Assembly, could reap thousands of dollars in blandishments every year without fear of punishment or blame" - Stephanie Rivera
Until a new Executive Director of the Commission is found to replace the fired Martin Healey, Chief Justices Williams and Weisberger approached Kent A. Willever to fill in. Later the 3 members being investigated asked the Attorney General's Office to pay their fees.
A RI state Supreme Court ruling frees public officials who are lawyers from state ethics rules -- and allows the Ethics Commission to drop a case against John Harwood. See the Grand Finale page!
Almond appointed a string of politically connected lawyers to the commission rejecting a number of highly qualified lay persons with extensive ethics experience.
Read how they looked the other way regarding wrongdoing of Attorney General Patrick Lynch