Top Carcieri Aide gets Green Light on Jobs as Judge

By JIM BARON

PROVIDENCE — Although he had to thread an ethical needle through several potential conflicts, Brian Stern, chief of staff to Gov. Donald Carcieri, has received a tentative green light from the staff of the Ethics Commission to put his name in to the Judicial Nominating Commission (JNC) for two different state judgeships.

An 11-page advisory opinion authored by the commission’s executive director, Kent Willever, tells Stern that “nothing in the set of facts as presented … presents a prohibited conflict of interest” that would prevent him from applying for openings as an associate justice of the Superior Court or chief judge of the District Court.
That opinion must still be ratified by the commission, which will take it up when it meets Tuesday morning for its regular monthly meeting. While the commission generally approves the staff’s recommendations on advisory opinions, the process is by no means automatic; commissioners have voted to reject staff recommendations in a variety of cases over the years.
The so-called “revolving door law” prevents someone holding “a senior policy-making discretionary or confidential position on the staff of any state elected official” from seeking or accepting employment by another state agency while serving in that position, or for one year afterward.
It also contains a provision, however, that exempts anyone with five years of uninterrupted state service in anything but elective office.
Stern meets that latter standard.
He became chief of staff to the governor in March 2007, but he began working for the state in 1998, starting as a chief securities examiner for the Department of Business Regulation. He moved up to deputy chief of legal services at DBR before shifting over to the Department of Administration as executive counsel in 2004. He was elevated to DOA executive director and purchasing agent before signing on as chief of staff to the governor.
But, Willever’s draft opinion notes, that does not get Stern completely out of the ethical woods in this situation because it is Carcieri who will make the final judicial selection from a list provided by the JNC.
“The next area of inquiry,” Willever wrote, “is whether (Stern’s) acts in removing himself from his duties as chief of staff in regard to matters concerning the JNC and matters involving the list of judicial nominees … are sufficient to avoid any conflicts of interest that would otherwise arise.”
Stern told the commission in his request for the advisory opinion that “on the day I filed my first application with the JNC I delivered a letter to the governor and his executive counsel removing myself from any participation in the judicial selection process involving the vacancies I applied for as well as any other judicial vacancy.
“I have recused myself from any participation in discussions about the JNC or appointments thereto, have set up an information barrier so I do not have access to information about interviews with prospective judicial candidates or the JNC with the governor. I have also advised the JNC of this information barrier in my application cover letter.”
Stern declined to be interviewed for this story. Amy Kempe, spokeswoman for the governor’s office, said Stern “wants to respect the integrity of the process” and feels it would be “inappropriate” to discuss it in the newspaper. She said Stern wants his application to be considered on its merits, not in terms of his position with the governor’s office.
Willever also worried that a Stern subordinate, the governor’s executive counsel, will be vetting the candidates for the judicial openings and making recommendations to the governor. However, he reasoned that “all decision-making, including the delegation of duties to (Stern’s) subordinate, rests solely with the governor.”
In the set of facts presented, Willever added, “there is no action (Stern) himself will have taken that is prohibited by the Code of Ethics.”
John Marion, executive director of Common Cause of Rhode Island, said Stern “seems to be abiding by the letter of the Code of Ethics,” although he acknowledged not being completely comfortable with the situation.
But, Marion added, Stern “asked them to carve out a very narrow set of circumstances under which he can do this. He walks a real fine line in what he asks and they have provided him a very narrow path on which to proceed.”
Marion said this case “illustrates the value of the merit selection process.” Through that process, Marion noted, Stern would undergo an open JRC interview at which public testimony would be solicited, all in the light of day.
Asked if the governor might face an ethics quandary if Stern’s name was put forward as a nominee, Marion said “yes. In the letter of the law, there’s not a conflict. But it seems like it would be difficult for the governor to ignore having one of his own on the list.”
Were the JNC to forward Stern’s name to the governor for one of the vacancies and the governor were to choose him, that selection would be subject to the advice and consent of the state Senate. In 2007, shortly after becoming chief of staff, Stern had a run-in with the Senate Government Oversight Committee over an emergency no-bid contract issued to a temporary staffing agency while he was purchasing director. The committee issued a report that lambasted the Carcieri administration’s handling of the matter.

Common Cause Files Brief in Irons Case

On Tuesday March 17th, Common Cause Rhode Island filed an amicus curiae brief with the Rhode Island Supreme Court in support of the Rhode Island Ethics Commission. The Commission seeks to overturn a 2008 Superior Court decision that ruled the “Speech in Debate” clause of the Rhode Island Constitution prevents the Ethics Commission from investigating members of the General Assembly. Common Cause, along with the League of Women Voters of Rhode Island, argue that the Ethics Commission does indeed have jurisdiction over members of the General Assembly based on the changes enacted as part of the 1986 Constitutional Convention. The Supreme Court is set to hear arguments in the appeal on May 13th.

Former state Senate President William V. Irons Still Wants Right to Jury trial

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — Hedging his bets should the state Supreme Court reverse a lower court’s dismissal of ethics charges against him, former Senate President William V. Irons is asking the high justices to overturn a ruling by the same court denying him a jury trial on those counts.

Irons argues the charges, which accuse him of breaking the state code of ethics by using his public office to financially benefit his business associate, pharmaceutical giant CVS, were premised on alleged misconduct while he was in office. There is ample evidence, he said, that claims of misconduct against public officials were considered criminal before the passage of the state Constitution in 1842, and that, therefore, he should be entitled to a jury trial.

“Whatever the label is on it today, it’s still criminal by common law,” John A. Tarantino, his lawyer, said. “If you have the right to a trial by jury, it just doesn’t go away.”

Irons asks the Supreme Court in a brief filed Tuesday to uphold his right to a jury trial, should the court overturn a Superior Court decision dismissing the ethics complaints. Tarantino did not elaborate on why Irons would choose to have a jury hear the charges, instead of the Ethics Commission, which typically considers ethics violations.

Irons, an insurance salesman, abruptly resigned on Dec. 31, 2003, after two decades in the state Senate. He had opposed pharmacy-choice legislation that CVS, which he had sold insurance to, wanted killed. The Journal disclosed that Irons, then chairman of the Senate committee that handled health care, had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross policy covering CVS workers in Rhode Island.

The Ethics Commission found probable cause that Irons broke the Code of Ethics after a complaint was launched by two members of the watchdog group, Operation Clean Government. The next step would typically have been a hearing before the commission. Irons, however, went to court in an attempt to block the commission prosecution.

In October, Superior Court Judge Francis J. Darigan dismissed ethics charges against Irons, finding that the “speech in debate” clause of the state Constitution prevented the Ethics Commission from questioning or investigating lawmakers based on their legislative acts.

Darigan also ruled that the commission proceedings are civil, not criminal. He said that Irons was not entitled to a trial because the judge found no evidence that anyone had been tried for such crimes prior to the passage of the state Constitution.

Irons has said that shouldn’t matter.

The Ethics Commission on Tuesday filed its brief asking the court to overturn Darigan’s ruling. The commission asserts an amendment to the Constitution, passed by voters in 1986 in response to rampant cronyism and corruption, empowered it to investigate ethics complaints against lawmakers.

The commission recognizes the “speech-in-debate” clause still provides legislators with protections from private lawsuits for their legislative acts, said Jason Gramitt, commission lawyer, but the 1986 amendment gave the commission authority to question state leaders.

“The 1986 Constitutional Convention happened for a reason,” he said. “The people were dissatisfied with the way things were going.”

Darigan, in his October decision, noted he had checked the records of the 1986 Constitutional Convention and found no sign that the delegates wanted to take away the centuries-old principle of legislative immunity.

The commission argues that the court was wrong to rely solely on references to the clause instead of “numerous, unambiguous” evidence of the framers’ intent to have it regulate the General Assembly’s conduct.

Common Cause Rhode Island together with the League of Women Voters of Rhode Island, and Operation Clean Government, are seeking to weigh in on the commission’s behalf. They argue the decision defies the intent of the 1986 amendment to empower an independent, nonpartisan commission to question legislators’ actions, and to discipline, when necessary.

The Rhode Island Affiliate of the American Civil Liberties Union has asked to be a friend of the court in support of Irons. Executive Director Steven Brown said his group hopes to challenge the essence of the argument that voter approval of the 1986 constitutional amendment essentially supersedes other constitutional provisions.

The Rhode Island Supreme Court will hear arguments May 13. Irons and the commission must respond to each other’s briefs by April 30.

kmulvane@projo.com

How Much Do Lobbyists Pay to Get their Way?

In 2008, corporations spent more than $3 million to hire lobbyists to protect their interests at the Rhode Island State House. While budget deficits, a Medicaid waiver, and public-employee pensions dominate the news, corporate lobbyists are supporting or opposing hundreds of bills that could benefit or damage their companies' bottom lines. And thanks to a loophole in the lobbying disclosure law and a lengthy process for pursuing those who violate reporting laws, lobbyists' activities can be hard for the public to track.

Last year, the insurance industry was the biggest spender on lobbyists, dedicating more than three-quarters of a million dollars to getting its way, according to a Phoenix review of lobbying disclosure reports. In addition, the gambling, banking and finance, hospital, drug, and energy industries each spent more than $250,000 to hire lobbyists, according to the Phoenix compilation.

Notably absent from the list of big spenders, though certainly a force on Smith Hill, is the Rhode Island labor movement. Unions reported spending about $100,000 on lobbying. AFL-CIO Secretary-Treasurer George Nee says union expenses are comparatively low because most unions use staff and members to lobby. Union staff salaries, he explains, "are considerably less" than those of lawyers and corporate staff.

Common Cause: Halt Assembly Votes until Website is Fixed?

By Katherine Gregg

PROVIDENCE, RI -- With the General Assembly's Web site inoperable for the third day, a citizens advocacy group is strongly urging House leaders to cancel House votes and committee hearings today on bills the public cannot access.

Senate leaders have already canceled most votes and all hearings; House leaders have not.

Among the House bills up for a floor vote today: the proposed House rules for 2009-10, already the target of critics within the House.

"This is ridiculous,'' said John Marion, executive director of the Rhode Island chapter of Common Cause, "and the reason it is particularly problematic is because this is the first year when bills aren't being made available (on paper) to the public in the public information office in the basement.''

Marion did some homework, and from a previously cached copy of the current House rules found this: "The Chair of every committee shall post, in print and electronically, at least forty-eight (48) hours prior to any committee meeting, a list by number and title of the bills and resolutions to be heard at that meeting. Such postings shall be made electronically and on the Legislative Data Bulletin Board. The electronic posting shall be considered the official date of the posting.

"In the event that the electronic posting system is inoperable then the official posting shall be the printed posting on the Legislative Data Bulletin Board."

"As you can read, they do have a contingency in the rules,'' he said. "But they're silent on whether the bills themselves should be made available. They only say they shall be made available in print or electronically to members of the committee and principal sponsors. So, the House is obeying their rules, but again, I think they're skirting the spirit of holding a public hearing on a piece of legislation when the legislation itself is not available.''

In other words, "it is improper to hold a hearing on a bill when no one can access the bill,'' he said.

As the 4 p.m. start of the House session drew near, there was no official response from the House leadership to Marion's concerns.

Meanwhile, the Senate served notice at 3:30 p.m. that it would proceed with a vote to confirm Craig Stenning as director of the Department of Mental Health, Retardation and Hospitals. Stenning is currently the acting director.

Advocates Push to Revamp Magistrate-Selection Process

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — Their ranks have included the wife of a former House speaker, the Senate Judiciary Committee chairman’s sister and staff members of key state legislators, sparking criticism that the magistrate selection process is laced with politics.

And now matching bills have been submitted in the House and Senate that would subject magistrates to the same vetting as judges to ensure, supporters say, their selection is based on merit, not politics. They are backed by the government watchdog group Common Cause Rhode Island and the League of Women Voters of Rhode Island.

“I think it’s the fairest way to appoint magistrates, that they undergo the same rigorous review,” said Rep. Donna M. Walsh, a Charlestown Democrat who sponsored a similar bill that died in committee last year.

The measures would take the appointing authority for the state’s 20 magistrates away from the Superior Court presiding justice, Family and District Court chief judges and the Supreme Court chief justice.

Instead, magistrates, often a steppingstone to judgeships, would be selected in the same manner as judges. Interested individuals would apply to the Judicial Nominating Commission, which would forward a list of three to five candidates to the governor after a review and interview process. The governor would than have 21 days to submit a nominee to the state Senate for approval.

The bills come as the Senate on March 2 confirmed Superior Court Presiding Justice Joseph F. Rodgers’ selection of Patrick T. Burke to fill the opening created by Joseph A. Keough’s retirement as special magistrate in December. Burke, 45, has served as deputy assistant to House Speaker William J. Murphy since 2003.

“Our belief is that merit selection is broken,” said John Marion, executive director of Common Cause. He looks to other recent appointments that include R. David Cruise, former Senate President Joseph A. Montalbano’s chief of staff, as Traffic Tribunal magistrate, and William R. Guglietta, chief legal counsel to House Majority Leader Gordon D. Fox, D-Providence, as the tribunal’s chief magistrate.

“Now, we have Murphy’s aide?” Marion said.

Magistrates serve 10-year terms that can be renewed by the Senate and typically earn a base salary of $128,650, according to Craig N. Berke, court system spokesman. They have some of the same powers as judges, generally presiding over arraignments, motions and sentencing in uncontested cases. They do not hear trials, Rodgers said.

Rodgers defended his choice of Burke, saying it was no more political than then Sen. Lincoln D. Chafee’s backing of former state Supreme Court Justice Robert G. Flanders for the 1st U.S. Circuit Court of Appeals in 2006 or any other judicial appointment.

“Does that necessarily mean it’s bad? I don’t think so,” he said.

He chose Burke from among 27 applicants, he said, for his previous experience working with the pre-arraignment calendar he would be handling as magistrate and because he was well-respected as Murphy’s deputy assistant.

Rodgers said he wouldn’t object to placing magistrate selection under the JNC, but that the law should be written so the choice is made in consultation with the chief judges because the positions are specialized. For example, he said, magistrates assess sex offenders’ risk of reoffending, handle fines and restitution, and deal with juvenile truancy — duties that should not be relegated to judges.

“I honestly believe the chief judge of the respective courts knows better what the needs of the particular court might be,” he said.

Walsh first took aim at magistrate selection as a member of the Senate Judiciary Committee in 2000, when she sponsored legislation to change the confirmation process. She said it wasn’t politically popular at the time because then-House Speaker John Harwood’s wife, Patricia Lynch Harwood, had just been appointed Superior Court magistrate.

“I’m not quite sure what the resistance is,” she said, adding, “I think it’s a way of getting around things a little bit.”

Common Cause hopes the bill gains traction this time around.

Magistrate selection, Marion said, defies the changes to the judicial selection that voters approved in 1994 after two Supreme Court chief justices resigned amid scandal. Rhode Islanders, he said, called for appointments based on ability, not politics.

Former House Majority Leader Seeks Early Release

By Katie Mulvaney

Journal Staff Writer

Martineau

PROVIDENCE — Former House majority leader Gerard M. Martineau wants to be released from prison and he’s relying on a Superior Court decision that found the state Constitution protects legislators from prosecution based on their votes or other legislative activities to make his case.

Martineau argued in a motion filed last Friday in U.S. District Court that Superior Court Judge Francis J. Darigan’s decision to dismiss ethics charges against former Senate President William V. Irons supports a reduction in his federal prison term. Darigan ruled last fall that the Ethics Commission couldn’t prosecute Irons based on his legislative activities because of the “speech-in-debate” clause in the state Constitution.

The “intervening change of law is ideally situated” to his case, Martineau wrote, representing himself.

His crime, Martineau said, “lays squarely in his failure to file a conflict-of-interest [report] based upon actions he took while in his official capacity and therefore are legislatively privileged.” He acted in the scope of his duties and should be afforded the same protection of the speech-in-debate clause, he said.

Martineau is seeking immediate release, according to Thomas Connell, spokesman for U.S. Attorney Robert Clark Corrente’s office. Connell declined to comment further.

Martineau was the second Rhode Island legislator to go to prison in Operation Dollar Bill, the long-running federal corruption probe of influence peddling at the State House.

He pleaded guilty in 2007 to a $911,400 corruption scheme in which he sold plastic bags to the pharmacy giant CVS and Blue Cross & Blue Shield of Rhode Island — including payment for 8 million Blue Cross bags that didn’t exist. In return, Martineau acted favorably on legislation for the companies. He was sentenced to 37 months in prison last March for two counts of depriving the state of honest services.

Martineau, 50, of Woonsocket, served in the House of Representatives from 1987 to 2002, acting as majority leader his last four years in office.

Martineau said he accepts full responsibility, but argues his relationship with CVS predated his legislative career and that prosecutors miscalculated the loss his actions caused the state. He requested that the court lower the calculation from $911,400 to “Nil” or alternatively $195,400, and reduce his sentence.

In addition, the former legislator cited an impeccable prison record in Fort Dix, N.J. He is being considered, he said, for the position of town driver, “the most coveted employment position available.” He regularly attends Mass and other religious-study programs, mentors inmates and participates in a softball league. He anticipated a May 2010 release, but asked that he be reunited with his family sooner, particularly his 14-year-old son.

The Rhode Island Ethics Commission has asked the state Supreme Court to overturn Darigan’s decision regarding Irons, arguing it throws into question the commission’s authority with respect to legislators. The Rhode Island Supreme Court will hear arguments May 13.

Irons, an insurance salesman, abruptly resigned on Dec. 31, 2003, after two decades in the state Senate. He had opposed pharmacy-choice legislation that CVS, the pharmacy giant and a company that he had sold insurance to, wanted killed.

The Journal disclosed that Irons, then chairman of the Senate committee that handled health care, had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross policy covering CVS workers in Rhode Island.

The Ethics Commission found probable cause that Irons broke the code of ethics by using his public office to financially benefit his business associate, CVS. The next step would typically have been a hearing before the commission. Irons, however, went to court in an attempt to block the commission prosecution. Darigan accepted Irons’ arguments.

John Marion, executive director of the government watchdog group Common Cause Rhode Island, said he didn’t think Martineau’s argument would hold much weight since it referenced a state court decision, though the case was brought against him in federal court.

Common Cause, too, objects to Darigan’s ruling. “We think there is potential this could hamstring the Ethics Commission in all its dealing with legislators,” Marion said. “We’re hopeful it will be overturned.”

kmulvane@projo.com