Thursday, May 14, 2009

R.I. Supreme Court Hears Ethics Dispute

By Katie Mulvaney

Journal Staff Writer

Former Senate President William Irons leaves the courthouse Wednesday with family members and Vicki Almeida, right, one of his lawyers.

The Providence Journal / Mary Murphy

PROVIDENCE — An Ethics Commission lawyer told the state Supreme Court yesterday that Rhode Islanders were seeking to rid the state of rampant corruption when they passed a Constitutional amendment creating the commission more than two decades ago.

That 1986 amendment granted the commission clear authority to prosecute legislators and required that all elected officials, including the General Assembly, be subject to the ethics code, said Jason Gramitt, lawyer for the commission.

But Justices Francis X. Flaherty and William P. Robinson III noted that in passing that amendment, Rhode Islanders reaffirmed existing provisions of the Constitution, including the speech-in-debate clause at the heart of yesterday’s arguments.

With origins in the late 1600s and included in the state Constitution at its passage, the clause reads “For any speech in debate in either house, no member shall be questioned in any other place.”

It shields lawmakers from probes stemming from their votes or other legislative acts, said John A. Tarantino, lawyer for the former Senate President William V. Irons. “A legislator can be convicted of bribery but the proof can’t be the vote,” Tarantino said. “The vote is protected.”

The Supreme Court heard arguments yesterday in the Ethics Commission’s appeal of Superior Court Judge Francis J. Darigan Jr.’s dismissal of ethics charges against Irons. Darigan ruled in October that the speech-in-debate clause grants lawmakers legislative immunity.

Civil libertarians, clean-government groups and other observers packed the courtroom to hear the emotionally charged issue debated. About 25 people watched the proceedings on a big-screen TV in an overflow room as Irons sat in the front row with his wife and two daughters. Outside about dozen people carried signs saying “Don’t kill ethics in R.I.”

The Ethics Commission says that if the ruling stands, it will cripple its authority to police unethical behavior in the General Assembly. Irons has argued it is imperative to uphold the Constitution and that the commission would still have powers if the Superior Court’s decision is upheld.

Irons, who resigned from the Senate in 2003, appealed to the Superior Court after the Ethics Commission found probable cause that he had broken the ethics code by using his office for financial gain and voting on legislation in which he had a substantial conflict of interest.

As chairman of a committee that considers health-care issues, Irons had opposed controversial legislation CVS wanted killed to allow patients covered by Blue Cross & Blue Shield to get prescriptions filled at a pharmacy of their choice. It was later disclosed that Irons collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers and Operation Clean Government members filed the ethics complaint.

Robinson asked Gramitt yesterday how he would deal with the fact that the law disfavors arguments that a law has been repealed by implication.

Gramitt said the 1986 amendment carved out a narrow exception to legislative immunity by expressly giving the commission authority to investigate and impose penalties against legislators.

Retired Chief Justice Frank J. Williams questioned Tarantino about what powers the commission would retain if the court upholds Darigan.

The commission, Tarantino said, could still police legislators’ actions involving contracts, dealings with the executive branch, and filing incomplete or false financial disclosure reports. “The two provisions can coexist,” Tarantino said. “One isn’t eviscerated by the other.”

There is nothing in history, Tarantino said, “showing that voters tried to abrogate speech-in-debate … [Voters] made a determination they still wanted that protection in the Constitution.”

Gramitt disagreed, saying the two clauses are contradictory and that voters wanted sweeping ethics changes. “One has to go.”

Irons also asked yesterday for the high court to find he is entitled to a trial, should the commission prevail. A trial must be granted, Tarantino said, if a similar charge existed at common law and at that time breach of public trust was an indictable offenses. Darigan had ruled Irons was not entitled to a trial.

Katherine D’Arezzo, commission lawyer, argued that courts are not bound to take on cases that could be decided administratively.

“Does it trouble you that he never gets a trial before an impartial body?” Flaherty asked D’Arezzo. “It’s before the body accusing him.” The line of questioning shifted before the reply.

The commission and Irons opposed Attorney General Patrick C. Lynch’s position that the court need not take up the Constitutional question, that it should instead address a 1999 Ethics Commission opinion advising Irons that his participation in pharmacy-choice legislation would not be a conflict of interest.

Flaherty led yesterday’s proceedings. Acting Chief Justice Maureen McKenna Goldberg recused herself because of her long-time friendship with Irons’ wife, Mary. Both families have homes in Matunuck.

Irons said afterward that he thought the four justices asked the right questions. His most poignant moment came, he said, when Justice Flaherty asked D’Arezzo about the fairness of the ethics process. “The silence was deafening,” he said, adding “my experience has taught me that due process is surely challenged in a structure like that.”

John Marion, executive director of Common Cause Rhode Island, said he hoped the outcome would support the commission. “I hope the decision is quick so we [and the legislature] can move on.”

All ethics complaints against legislators have been on hold since Darigan’s ruling.

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