Sunday, April 26, 2009

Sides Weigh in on Irons Case

Sen. William V. Irons walks out of his office after announcing his departure from the General Assembly in December 2003.

The Providence Journal / BOB THAYER

When I joined The Journal’s State House bureau in 2000, one of my first assignments involved listening to then-Senate President William V. Irons offer advice to newly elected state legislators.

“You will not win reelection to this chamber by what you do in this building,” Irons told them. “It’s going to come as a shock to you freshmen,” he said, but the truth is most people don’t pay attention to the votes and stances legislators take on most issues.

“Please don’t misunderstand,” Irons said. “I’m not saying do anything you want up here and forget what they say.” The point, he said, is that legislators should not forget about the people who elected them. “Don’t forget your Little League associations,” he said. “Don’t forget your Lions Clubs.”

That advice seemed a bit cynical, but it contained a lot of truth. The average Rhode Islander doesn’t have time to follow the votes taken by the Senate Corporations Committee, for instance. And the average voter didn’t notice when Irons, as chairman of that committee, opposed a controversial pharmacy-choice bill that CVS — the pharmacy chain he’d sold insurance to — wanted killed.

In addressing the rookie lawmakers, Irons was no doubt emphasizing the importance of constituent service. But to me, his comments drove home the importance of watchdogs — of the reporters and groups that keep an eye on obscure committee votes and that probe possible conflicts of interest.

One of those watchdogs is the state Ethics Commission, which is now locked in a high-stakes legal battle with Irons. In the weeks ahead, the state Supreme Court will be weighing whether to uphold a ruling that says the Ethics Commission can’t prosecute legislators based on their votes and other legislative activities. The Ethics Commission says that if that ruling stands, it could cripple its ability to police unethical behavior in the General Assembly.

Irons, an insurance salesman from East Providence, abruptly resigned in December 2003 after two decades in the Senate. The Journal later disclosed that Irons had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross health-insurance policy covering CVS workers in Rhode Island. The Ethics Commission found probable cause to believe Irons broke the ethics code by using his public office to obtain financial gain for his business associate, CVS.

But Irons’ lawyer went to Superior Court, arguing that the state Constitution’s “speech-in-debate” clause provides him with legislative immunity from such prosecution. Ethics Commission lawyers contended that voters “carved out a narrow exception to legislative immunity” when they amended the state Constitution in 1986 to create the Ethics Commission.

But in October 2008, Superior Court Judge Francis J. Darigan Jr. ruled in Irons’ favor, saying that if the drafters of a 1986 ethics amendment intended to repeal or dilute the speech-in-debate clause, “they could have and should have made that intention explicit.”

The Supreme Court will hear arguments in May. And in the meantime, the American Civil Liberties Union, Common Cause Rhode Island, the League of Women Voters of Rhode Island, and Operation Clean Government are adding their voices to the debate, filing legal briefs to go along with those filed by Irons and the Ethics Commission. The documents detail the complexity of the case and highlight its importance.

In the Ethics Commission brief, lawyers Jason Gramitt and Katherine D’Arezzo say Darigan’s ruling “sets the state of Rhode Island back 22 years and, more importantly, disenfranchises” the voters who overwhelmingly approved the 1986 ethics amendment to restore the public’s trust in government.

They argue that the Supreme Court has previously determined that “the Ethics Commission’s unique constitutional mandate and structure permit narrow intrusions into legislative areas traditionally protected by separation-of-power principles.”

Ethics Commission lawyers cite a 1992 Supreme Court advisory opinion that said the 1986 ethics amendment modified, by implication, another section of the state Constitution. (The opinion dealt with whether the Ethics Commission could add new prohibitions to the ethics code without first seeking General Assembly approval.)

But Irons’ lawyers say the issue presented in this case “is in no way controlled by” the Supreme Court’s 1992 advisory opinion.

“Although the delegates drafted the ethics amendments to establish an independent body, they did so without a repeal (and, in fact, with a re-adoption of) the speech-in-debate clause,” lawyers John A. Tarantino, Patricia K. Rocha and Victoria M. Almeida say. “Consequently, the Ethics Commission is empowered to investigate actions of legislators performed in a political, not legislative capacity.”

Irons’ lawyers cite a 1984 Supreme Court ruling, in Holmes v. Farmer, that said, “Legislators should not be questioned by any other branch of government for their acts in carrying out their legislative duties.”

The Holmes case involved an appeal by a former state Republican Party chairman who wanted to challenge the constitutionality of legislative redistricting. The Supreme Court said the speech-in-debate clause protected lawmakers from being questioned in that lawsuit.

But the Ethics Commission notes the Holmes case involved a suit filed by a private party rather than the Ethics Commission, and the case was decided before the 1986 ethics amendment.

A legal brief filed on behalf of Common Cause and the League of Women Voters addresses many of the same issues while also focusing on historical context.

In that brief, lawyer Thomas R. Bender says the state’s “speech-in-debate” clause is modeled after the federal “speech or debate” clause, which has “taproots in the Parliamentary struggles” of 16th- and 17th-century England where “successive monarchs utilized the criminal and civil law to suppress and intimidate” legislators critical of the king.

Bender says the “legislative independence” provided by the speech or debate clause “is, however, intimately linked with the legislative responsibility to internally discipline its members.” And in Rhode Island, when legislators repeatedly failed to police their own misconduct, voters decided that legislative independence “had to give way in small measure to the public’s interest in, and confidence in, legislative integrity.”

Bender quotes the Supreme Court’s ruling as saying that prior to the 1986 ethics amendment, “widespread breaches of trust, cronyism, impropriety and other violations of ethical standards decimated the public’s trust in government.” He says the 1986 ethics amendment shifted the legislative power regarding ethics away from the General Assembly, placing it in the hands of an “independent, nonpartisan commission with the power to ‘question’ core legislative activities.”

In Operation Clean Government’s legal brief, lawyer Thomas More Dickinson emphasizes that the 1986 ethics amendment says “all elected and appointed officials” shall be subject to the ethics code. And, he says, “To hold an entire class of elected officials — within an extremely powerful branch of our state government — exempt from enforcement of the code is to break faith with convention delegates who wrote the amendments and the voters who heartily approved them.”

I have no doubt about what the framers and the voters intended to do in 1986. And I believe Rhode Island needs an Ethics Commission that has the power to police legislative activities for conflicts of interest.

But I do have doubts about whether the framers and the voters who passed the 1986 ethics amendment fully succeeded in doing what they intended to do. I have doubts about whether it was enough to say the ethics amendment applies to all elected officials, and I wonder if the amendment should have spelled out that it overrides legislative immunity. Those doubts are stoked by the legal brief filed by the ACLU’s Rhode Island Affiliate.

In that brief, lawyers Mark W. Freel and Jon M. Anderson say the ethics amendment and the speech-in-debate clause are not in direct conflict, and “even if they were, constitutional guarantees of civil liberties cannot, should not and must not be repealed or limited by implication.”

Stay tuned as the debate continues before the Supreme Court on May 13.

When the newly elected legislators gathered in December 2000, Irons no doubt provided some practical suggestions. But I think the better advice came from then-Gov. Lincoln C. Almond, a former U.S. Attorney who began and ended his remarks with an admonition about integrity.

“There’s a lot of cynicism out there,” said Almond, who chose to address the lawmakers from the Senate floor rather than the elevated podium favored by other speakers. “But we should all show leadership with respect to the integrity of state government.” High ethical standards, he suggested, are key to giving citizens a “strong degree of confidence” in government.

If all of the state’s elected officials followed that advice, we wouldn’t need an Ethics Commission in the first place.

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