Saturday, March 21, 2009

Top Carcieri Aide gets Green Light on Jobs as Judge


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.

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