Saturday, May 2, 2009

R.I. Attorney General Backs Legislative Immunity in Irons Case

By Katie Mulvaney

Journal Staff Writer


PROVIDENCE — Attorney General Patrick C. Lynch has weighed in on former Senate President William V. Irons’ quest to persuade the state Supreme Court to let a ruling stand that says the state Constitution protects lawmakers from ethics probes into their legislative acts.

The attorney general argues the high court need not take up the constitutional question at all, that the Ethics Commission itself issued an advisory opinion that gave Irons the OK to cast legislative votes that might have a financial impact on his clients.

Lynch’s friend-of-the-court brief comes about two weeks before the high court is to hear arguments on May 13. It drew fire Friday from the Ethics Commission and other parties with a stake in the case, with all saying they would like the constitutional issue settled. They complained its late date did not give them a chance to respond as the deadline to file briefs is up.

“If the court goes along with the attorney general’s brief then the issue of legislative immunity is still alive in Rhode Island,” commission lawyer Jason Gramitt said. The next lawmaker to face alleged ethics violations will raise the same defense as Irons, he said. “We think it’s better to address it now.”

Irons resigned in 2003 after two decades in the Senate. He had opposed pharmacy-choice legislation that CVS, which he sold insurance to, wanted killed. The Journal disclosed that Irons had collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers. The Ethics Commission found probable cause that Irons broke the ethics code. The next step would typically have been a commission hearing.

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

Superior Court Judge Francis J. Darigan in October dismissed ethics charges against Irons, finding that the “speech-in-debate” clause of the state Constitution prevented the commission from questioning or investigating lawmakers based on their legislative acts. The case was appealed to the Supreme Court.

Lynch’s three-page brief asserts it would be inconsistent with high-court practice, if the court took up the speech-in-debate question before addressing a 1999 Ethics Commission advisory opinion advising Irons that his participation in pharmacy-choice legislation would not be a conflict of interest. “It is the state’s position that resolution of this significant constitutional issue is unnecessary since an alternative, non-constitutional issue exists that first must be examined,” wrote Special Assistant Attorney General Michael W. Field and Assistant Attorney General Rebecca Tedford Partington, deputy chief of Lynch’s civil division.

The Ethics Commission and Irons say they want the case to proceed on constitutional grounds. “From our perspective, we believe the court can and should address the constitutional issue,” said Irons’ lawyer, John A. Tarantino.

Gramitt said the 1999 advisory was based on information Irons provided and did not specify that his client was CVS. “The question is if the commission had known would they have advised him in the same way,” Gramitt said. The ethics investigation, had it proceeded, would have explored whether Irons deliberately omitted that detail.

Tarantino argues the speech-in-debate protects Iron from that line of questioning, period, but that the advisory will be part of the former senator’s defense if the court rules for the commission. “We’re saying he shouldn’t be prosecuted at all.”

The watchdog groups Common Cause Rhode Island and Operation Clean Government remain perplexed. “We find it interesting that the defender of the state Constitution [the attorney general] is trying to get the court to punt on the constitutional issue,” said John Marion, executive directive of Common Cause. “It seems like he would be interested in getting the constitutional question answered.”

Chuck Barton, president of OCG, said it looked like Lynch, who is said to be in the Democratic race for governor, is playing it both ways: “It looks like he’s siding with the Ethics Commission but at the same time he seems to be finding a way to endorse Irons’ behavior.”

Lynch’s spokesman Michael J. Healey says not so. “It’s not pro-Irons; it’s not anti-Irons,” he said. “It’s about trying to help the court settle an important issue.”

No comments:

Post a Comment