Tuesday, June 30, 2009

High Court Rules in Irons’ Favor on Ethics Prosecution

By Mike Stanton

Journal Staff Writer

PROVIDENCE — Rhode Island legislators can be prosecuted for ethics violations involving their political activities, questionable acts on behalf of constituents or businessmen –– but not, the Rhode Island Supreme Court ruled Monday, for their official legislative votes or actions.

In a historic and long-awaited decision, the court ruled 3 to 1 in favor of former Senate President William V. Irons, who had been accused of acting on pharmacy legislation despite collecting hundreds of thousands of dollars in insurance commissions involving the CVS drugstore chain and Blue Cross & Blue Shield of Rhode Island.

Retired Chief Justice Frank J. Williams and Justices Francis X. Flaherty and William P. Robinson III ruled that the Rhode Island Constitution’s speech-in-debate clause gives legislators immunity from prosecution by the state Ethics Commission for their official votes or legislative duties.

The decision upheld a ruling last year by Superior Court Judge Francis J. Darigan Jr. dismissing ethics charges against Irons.

Justice Paul A. Suttell, who was confirmed last week by the General Assembly as the next chief justice, was the lone dissenter. He argued that Rhode Island voters intended to carve out a narrow exception for ethics violations when they adopted a 1986 constitutional amendment creating the Ethics Commission.

Justice Maureen McKenna Goldberg recused herself because she is a friend of Irons’ wife.

John A. Tarantino, a lawyer for Irons, hailed the decision as a victory not only for his client, but for Rhode Island.

“The public should be pleased by this decision,” he said. “They may not like the result, but if the Constitution is upheld and it’s what the people enacted, the system works.”

Tarantino said that Irons was pleased and relieved by the decision, which ended a five-year legal struggle during which he also was the target of a federal State House corruption probe, Operation Dollar Bill. While former Sen. John A. Celona and ex-House Majority Leader Gerard M. Martineau were convicted of selling their office to CVS and Blue Cross, authorities ultimately chose not to charge Irons.

Corrupt legislators can still be prosecuted by the Ethics Commission, said Tarantino; the key difference is that now their actual vote or official action can’t be used as evidence.

Jason Gramitt, an Ethics Commission lawyer, said that the decision will make the commission’s job policing legislators more difficult.

“It’s a significant decision,” he said. “It removes such a visible aspect of our enforcement authority. For now, we will not be questioning their core legislative activities.”

In proving a quid pro quo between a legislator’s official actions and some undue influence, the commission won’t be able to use the official act at the center of the illicit bargain.

Tarantino said that proof could come through other evidence: a letter, a phone call, a meeting. “You just can’t use the vote as evidence.”

Said Gramitt: “You still can’t sell your office. To prove that, however, we have to prove an agreement. But whether they kept their end of the bargain [by voting a certain way], we can’t use. We’ll have to look for more smoking guns.”

While legislators are still bound by other aspects of the state Code of Ethics, for instance on gifts and outside employment, Gramitt said the commission will stop issuing advisory opinions to lawmakers regarding whether they could vote on certain issues.

John Marion, executive director of Common Cause Rhode Island, lamented the decision for ignoring what he said was Rhode Island voters’ historic intent in creating the Ethics Commission and for gutting the agency’s powers to police corruption at the State House.

“Today the Rhode Island Supreme Court dealt a sharp blow to ethical government in Rhode Island,” said Marion. “By doing this, one of the main tools that the people of the Rhode Island deemed necessary for policing the ethics of Rhode Island government has been removed.”

Marion called on the legislature, when it comes back into session later this summer, to pass a bill sponsored by Rep. David A. Segal, D-Providence, that calls for a referendum on a constitutional amendment placing legislators under the authority of the Ethics Commission, notwithstanding the speech-in-debate clause.

The Supreme Court said Monday that the voters could change the Constitution to do so.

House Speaker William J. Murphy, D-West Warwick, did not respond to requests for comment.

THE LEGAL STRUGGLE over the future of Rhode Island ethics enforcement is rooted in a historical concept that dates to the 15th-century English Parliament, carried through the American Revolution of 1776 and was enshrined in the first Rhode Island Constitution, in 1852.

The so-called speech-in-debate clause was designed to allow lawmakers to freely express themselves without fear of retribution. The Rhode Island Constitution says no legislators “shall be questioned in any other place” regarding their official votes or actions. But in 1986, after a Constitutional Convention, Rhode Island voters approved an amendment creating the Ethics Commission –– and a legal quagmire that justices waded through in Monday’s 28-page decision.

The majority opinion, by Flaherty, Robinson and Williams, quoted Thomas Jefferson that this important legislative immunity exists “in order to give to the will of the people the influence it ought to have.”

Notwithstanding the 1986 ethics amendment, the majority wrote, Rhode Island voters “reaffirmed” the speech-in-debate clause when they “adopted a neutral rewrite” of that provision the same year. The intent of the clause, the majority said, is not to protect legislators from being prosecuted for acting to benefit themselves, but to protect the public by allowing elected officials to carry out their duties without fear of prosecution.

“We wish to stress in the strongest possible terms, however, that it in no way grants a legislator the right to transgress the Code of Ethics or any other law,” the majority wrote. Unprotected actions include political activities, efforts for constituents, assistance in securing government contracts, soliciting and taking bribes and criminal activities –– “even those committed to further legislative activity.”

Here, the majority said, Irons’ actions involved “core legislative acts.”

The majority and Suttell agreed that the 1986 amendment created a conundrum –– pitting the speech-in-debate clause against the power of an independent Ethics Commission.

“If the citizens of Rhode Island wish to empower the Ethics Commission to investigate and prosecute legislators with respect to their legislative actions … they most certainly have the power to do so,” the majority wrote.

Suttell countered in his dissent that the 1986 ethics amendment carved out an exception to the speech-in-debate clause “to achieve a framework for more responsible and accountable governance.”

“In essence, the majority chooses to accord greater import to ‘an ancient and venerable hallmark of our form of government’ than to the more newly minted ethics amendment,” Suttell wrote.

Although he retired early this year, Williams has continued to hear cases while his replacement was chosen; since Suttell already sat on the court, his ascension still leaves a vacancy on the court.


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