Tuesday, April 28, 2009

Is ‘R.I. Ethics’ an Oxymoron?


SHORTLY AFTER I arrived at The Journal, a sardonic editor informed me with a straight face that the phrase “Rhode Island ethics” was an oxymoron. I had a good laugh, but it seems he may have been prophetic.

Because, in October, Superior Court Judge Francis Darigan pulled the rug out from under the state’s system for enforcing ethics in government. He dismissed charges that former Senate President William Irons had acted in the interests of a business client, finding that the “speech-in-debate” clause of the state constitution barred the state Ethics Commission from questioning or investigating lawmakers on the basis of their legislative acts.

And now the American Civil Liberties Union has weighed in, agreeing with the ruling and arguing that “fundamental rights and liberties” in the state constitution give Rhode Island legislators freedom from the irritating restraints on their conduct imposed by the Ethics Commission.

The Rhode Island Supreme Court is set to hear arguments May 13.

I’m no constitutional lawyer, and I’ve always had qualms about a quasi-judicial body operating (as the Ethics Commission does) in a murky region outside the executive, legislative or judicial branches, but this argument certainly seems bizarre on its face.

After all, members of our national legislature, Congress, have similar speech protections yet are hemmed in by ethics restrictions. They should have maximum protection to do their jobs representing the people, of course. It is necessary to shield them from attack by powerful interests or other branches of government for exerting their will as representatives. On the other hand, the U.S. Supreme Court has ruled that this clause does not give congressmen the right to, say, accept bribes for their string-pulling or votes.

As for the notion that the Ethics Commission violates the constitution: Rhode Island voters jumped through the appropriate hoops in 1986, when, sickened by government corruption, they amended the constitution to create the Ethics Commission. Such reform is always a Herculean effort, a long hard pull against powerful reactionary forces that are heavily invested in corruption (legal and otherwise) at the State House. The Darigan ruling seems to disenfranchise those voters and disregard the constitution as they amended it, something that in itself is ominous.

The Rhode Island Constitution (Article 3, Section 8) states: “The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. 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. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.”

If all elected officials are included under the constitution, that by definition includes members of the General Assembly.

But here’s the rub: The constitution also states (Article 6, Section 5): “For any speech in debate in either house, no member shall be questioned in any other place.” Does this clause supersede the voters’ will in the other section? And must it be interpreted so broadly that “speech in debate” includes the right to sell one’s office for private gain and evade the state’s ethics code, as administered by the Ethics Commission?

Were such an interpretation to stand, ethical judgments in recent years — including those against former House Majority Leader Gerald Martineau, House Majority Leader Gordon Fox, former Sen. John Celona and former Senate President Joseph Montalbano — could not have been pursued. That might please political insiders, who would be blessed with greater freedom to turn public office into income opportunities. Whether it would serve the public interest is another matter.

That is why Common Cause Rhode Island, the League of Women Voters of Rhode Island and Operation Clean Government have all filed briefs supporting the commission’s challenge of Judge Darigan’s ruling.

Of course, an ethics commission is not the only check on corruption. A free and vigorous press is also crucial, as are competitive elections. When a politician faces an opponent, he or she is much more inclined to serve the general good rather than special interests and selfish financial aims. That is because such conduct can become a campaign issue.

For that reason, the public should be pressing its elected officials to get rid of the “master lever” on the ballot, a corrupt legacy of machine politics. That ballot option gives a majority-party candidate a huge built-in advantage against a minority-party or independent candidate. Such unfair elections not only help deny voters a choice on the ballot, but also deprive them of incumbents who care very much about what the public thinks.

In the meantime, citizens concerned about ethics in Rhode Island government will be waiting nervously to find out whether the Supreme Court goes along with Judge Darigan’s intriguing interpretation of the constitution.

Edward Achorn is The Journal’s deputy editorial- pages editor ( eachorn@projo.com).

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