Sunday, July 26, 2009

Join us for Speech in Debate Forum Sept. 16

Common Cause Rhode Island and the A. Alfred Taubman Center at Brown University are pleased to announce a panel discussion:

“The Rhode Island Ethics Commission in the Wake of the Irons Decision.”

Description: Please join us for a panel discussion about the decision of the Rhode Island Supreme Court in the case of Irons vs. The RI Ethics Commission and the future of the Commission in the decision’s wake. Hear from leading experts on the decision, as well as authorities on the Commission and advocates working to make changes in the wake of the Supreme Court’s opinion.


Ross Cheit–Professor of Public Policy at Brown and member of The Rhode Island Ethics Commission


Barbara Binder–Attorney and Chairwoman of The Rhode Island Ethics Commission
Mark Freel–Attorney and author of RI ACLU brief in the Irons vs. RIEC case
Tom Bender–Attorney and author of Common Cause RI brief in the Irons vs. RIEC case
Jason Gramitt –Staff attorney RIEC, and author of RIEC brief
John Marion–Executive director of Common Cause RI
John Roney (tentative) –Attorney and parliamentarian of Rhode Island Senate

Where: Smith-Buonanno Hall, Room 106 at 95 Cushing Street on the Brown University Campus.

When: Wednesday, September 16th at 7 pm.

Friday, July 10, 2009

Voters Must Decide On Ethics — Again


ONE OF THOSE EXTREMELY consequential events in state history, in line with the passing of the separation-of-powers amendments in 2004 and the changes brought about by the constitutional convention in 1986, just occurred on June 29. The Rhode Island Supreme Court ruled in favor of the plaintiff in William V. Irons vs. The Rhode Island Ethics Commission.

Why does this matter? On its face, this is just an opinion upholding a Superior Court decision that limits the jurisdiction of the Ethics Commission. But in reality, it is much more than that. This is a blow to all of those who believe Rhode Island needs the strongest possible mechanism for enforcing its Code of Ethics.

That mechanism is the Rhode Island Ethics Commission, which polices the behavior of public officials in the state. It is a nine-member commission, with a twelve-person staff, that has the power to investigate, prosecute, and penalize public officials for violations of the Code of Ethics. Because it is enshrined in our state constitution, it is one of the strongest such bodies in the United States, and when it’s working well, is a shining example of good government.

On June 29, the Supreme Court severely limited the power of the Ethics Commission to do its job. The majority of the court ruled that the “speech in debate” clause of the Rhode Island Constitution, as it was first written in 1842, trumps the ethics amendment creating the commission approved by the voters in 1986. After determining that the two sections of the constitution are in conflict with one another, the court sided with the older one.

What is the “speech in debate” clause? It is a section of the constitution designed to protect legislators from harassment as they go about their “core legislative functions” of hearing bills in committee, debating bills, and ultimately voting on their fate. The clause grew out of a desire of English parliamentarians to protect themselves from intrusions by those who might be upset with their actions. By attempting to prosecute former Senate President Irons for his vote on “pharmacy freedom of choice” legislation, the court ruled the Ethics Commission was hindering the senator’s right to go about his job without interference.

Common Cause believes, along with Chief Justice Paul Suttell as articulated in his dissenting opinion, that the court’s majority opinion misses the intent of the 1986 constitutional convention that created the Ethics Commission. We believe that the authors of the ethics amendment in 1986 never intended for there to be a “speech in debate” immunity exception to the Ethics Commission’s jurisdiction. Unlike the majority opinion, we believe that the intention of the people of Rhode Island was to give the Ethics Commission jurisdiction over all elected officials and their actions.

If we think for a moment about what is the historical intent of the “speech in debate” clause, the Ethics Commission serves to provide that very protection to legislators. By deciding the validity of citizens’ complaints, the commission can weed out complaints that are without merit, or which are intended to harass legislators.

What can we do now? The majority opinion of the Supreme Court says that this outcome can be changed by “a sufficiently explicit constitutional amendment.” Therefore, Common Cause calls on the General Assembly to put before the voters in 2010 a proposed constitutional amendment giving the Ethics Commission jurisdiction over all of the activities of legislators.

Currently there is a bill by Rep. David Segal (D.-Providence) that seeks to do this. While we believe this bill is a good start, we at Common Cause would like to work with the General Assembly to draft a proposed constitutional amendment that is sufficiently “explicit” to clarify the intended powers of the Ethics Commission.

Now is the time for the General Assembly to pass this legislation and put a constitutional amendment before the people for a new vote. The General Assembly is in the process of putting before the people a question regarding the name of the state; why shouldn’t the people have the right to decide if legislators alone should have a special immunity from prosecution?

Every concerned citizen of this state can help in this effort. In addition to pressuring your legislators to put this proposed constitutional amendment on the ballot, you can support the Rhode Island Ethics Commission in the work it does. The Ethics Commission continues to have full jurisdiction over all other public officials in the state, as well as jurisdiction over legislators with respect to activities outside of the “core legislative functions.”

Let’s remember what we’re asking for is simply a return to the status quo that existed between 1986 and 2008. If you think the Ethics Commission’s oversight of the General Assembly was acceptable during this period, then asserting that ability to provide oversight in the constitution is no threat to the liberty of legislators.

The Ethics Commission and the Code of Ethics belong to the people of Rhode Island, and not to the politicians. Let’s keep them both strong. Let’s make sure the people get to decide whether legislators deserve special immunity. Let’s make sure the court’s opinion isn’t used as a pretext for undermining the Ethics Commission. And let’s make sure we continue stand up for good, ethical government in Rhode Island by reinforcing the will of the voters in 1986 and empowering the Ethics Commission to police all behavior of all elected officials — again.

John Marion is executive director of Common Cause Rhode Island.

R.I. Ethics Panel to Review Union Issues

By Mike Stanton

Journal Staff Writer

When Valerie Zuercher was elected to the Exeter-West Greenwich School Committee last November, she worried about a potential conflict of interest –– she belonged to the teachers union in neighboring South Kingstown.

So out of an abundance of caution, she asked the Rhode Island Ethics Commission for an advisory opinion: Could she participate in matters involving the Exeter-West Greenwich teachers union, which had the same parent organization as hers?

The commission said earlier this year that she could, ruling as it has in several other opinions dating to 1996 that there is no conflict.

Now, the commission is taking a closer look at the issue.

Groups such as Operation Clean Government and Common Cause Rhode Island argue that the rules should be tightened, because how public officials act on union matters in their communities could affect their own unions. Labor contracts in one town are often cited in negotiations in another town. And local unions are often affiliated with the same statewide union.

Defenders of the status quo argue that the current ethics rules are sufficient. The Ethics Commission has held repeatedly that there is no financial or business relationship between a public official who belongs to a union in another town and a union negotiator.

In Zuercher’s case, the South Kingstown and Exeter-West Greenwich teachers unions are both affiliated with National Education Association Rhode Island. Both locals use the same statewide union representative in collective bargaining.

“I didn’t feel that there was a conflict, but I wanted a higher authority to weigh in because I didn’t want to do anything wrong,” said Zuercher, who works as a school social worker in South Kingstown. “I’m sure in certain situations there could be a conflict –– if I was a union rep more involved in the ins and outs of the contract in the town where I work. But I’m not.”

Zuercher added that in Exeter-West Greenwich she is not on the school board’s bargaining committee; if she were, she might seek another advisory opinion from the Ethics Commission.

At an Ethics Commission hearing last month on whether the rules should be changed, Harry Staley of the Rhode Island Statewide Coalition, a confederation of taxpayer organizations, argued that a school committee member who belongs to a teachers union in another community “is effectively negotiating with himself and/or his interests,” according to commission minutes. “The entire situation is fraught with actual or potential conflicts.”

George Nee, secretary-treasurer of the Rhode Island AFL-CIO, countered that further restrictions would unfairly limit a public official’s ability to participate in the democratic process. Voters are aware of the backgrounds of the people they elect, he said. That position was echoed by lawyer Robert Mann, who spoke on behalf of Working Rhode Island, a coalition of labor organizations.

Barbara H. Binder, the chairwoman of the Ethics Commission, noted that a unionized employee of the Community College of Rhode Island who serves on the Narragansett School Committee sought an advisory opinion last year because she didn’t feel comfortable negotiating with the teachers union in Narragansett. She belongs to the same umbrella union at CCRI. The commission said that she could.

Sandra Thompson, of Operation Clean Government, told the commission that there is still “a commonality” between union contracts in different communities “which cannot be absolved and which does not serve the public interest.”

Rep. Douglas W. Gablinske, D-Bristol, urged the commission to “follow the money,” suggesting that there is “frequent crossover” of local union dues going to umbrella union organizations. Nee said the financial structure varies, depending on the union and the community.

Binder asked the commission’s staff to further study the matter, including a financial analysis that would focus on the “financial nexus” between statewide teachers unions and their local affiliates. No date has been set for further action.

Sunday, July 5, 2009

Assembly Must Permit A Ballot On Ethics Reach

About 10 months ago, state Rep. David A. Segal asked the Ethics Commission whether he could work for FairVote and still vote on bills that the advocacy group is lobbying for or against.

But the Ethics Commission isn’t about to tell Segal what he can vote on — not when a Superior Court judge last year dismissed ethics charges against former Senate President William V. Irons, saying the commission can’t prosecute legislators based on their votes.

And not when the state Supreme Court just issued a 3-to-1 ruling on Monday, saying the Rhode Island Constitution’s “speech-in-debate” clause gives legislators immunity from prosecution by the Ethics Commission for “core legislative functions” such as voting and speaking.

Segal, D-Providence, who until recently was a FairVote analyst, said he understands why he hasn’t received guidance from the Ethics Commission.

On his own, he has decided not to vote on any bill if FairVote had lobbied for it or if the group’s position on the legislation was obvious. (Among other things, FairVote favors electing the president by a pure popular vote rather than through the Electoral College). He believes he might have been able to vote on all of those bills because FairVote doesn’t benefit monetarily from the bills it backs.

In any case, Segal said, “We are in an awkward situation. A part-time legislature requires people to have incomes outside the legislature. By and large, people want to do the right thing, but reasonable people have different conceptions of what the right thing is. And it’s valuable to have an entity that can draw a bold line.”

A strong Ethics Commission is very valuable. And the General Assembly should place a constitutional amendment on the November 2010 ballot that would state — explicitly — that the Ethics Commission’s jurisdiction covers “core legislative functions” such as voting.

“It’s important to have a functioning Ethics Commission,” Segal said. “And I want to work to restore that as best I can.”

So he has introduced a joint resolution calling for a vote on a constitutional amendment that would say the Ethics Commission has jurisdiction over the General Assembly “notwithstanding” the constitution’s speech-in-debate clause.

John M. Marion, executive director of Common Cause Rhode Island, said the “notwithstanding” language might not be explicit enough to accomplish Segal’s goal. And Segal said he’s open to changing the language.

But with House Speaker William J. Murphy in Switzerland for a State Legislative Leaders Foundation forum on health care, it remains unclear when the House will reconvene. “In theory, it could pass this year,” Segal said of his resolution.

In reality, Segal might have mountains to climb once Murphy gets back from a luxury mountain hotel outside Zurich. (Murphy says he is using campaign money and his own money to pay for the trip. I’ll be interested in hearing what he learned at sessions such as “The History of Democracy in the Principality of Liechtenstein” and, of greater relevance to Rhode Island, “Health Care Stew! Politicians, lobbyists, pharmaceuticals, doctors and hospitals: What is the right mix?”)

Before leaving for Switzerland, Murphy, D-West Warwick, was cool to the idea of putting a constitutional amendment on the ballot. He told The Journal, “I don’t care what state you are talking about, you are always going to have one or two people who are going to do the wrong thing. That’s human life. But the bottom line is: I can tell you that my members who are in the House of Representatives are here for the right reason, and I am just a little cautious to make a regulation for one person.”

If you yodel that quote in the Alps, it sounds like Murphy is saying: We’re all great guys up here at the State House. Trust us, we’re the government.

I agree that most elected officials “want to do the right thing,” as Segal put it. But I also think most Rhode Islanders know that we need active watchdogs, including an Ethics Commission that can monitor conflicts of interest in legislative votes.

We know that former House Majority Leader Gerard M. Martineau, D-Woonsocket, and former Senate Corporations Committee Chairman John A. Celona, D-North Providence, are behind bars for selling their offices to CVS and Blue Cross & Blue Shield of Rhode Island.

We know that top officials such as House Majority Leader Gordon D. Fox, D-Providence, and Governor Carcieri, a Republican, have paid fines to settle Ethics Commission cases in recent years.

And we know that voters amended the Constitution to create the Ethics Commission in 1986 following a series of scandals.

Newly appointed Chief Justice Paul A. Suttell, the lone dissenter in Monday’s Supreme Court ruling, noted the high court has previously said, “A page of history is worth a volume of logic.”

And he noted the court has previously described the context of the Ethics Amendment this way: “The years preceding this state’s 1986 constitutional convention were marked by scandal and corruption in both state and local government. As a result, the overwhelming majority of Rhode Island’s citizens were at the very least distrustful of their elected and appointed officials and of government as a whole.”

Given that context, I have no doubt about what convention delegates intended to do when they produced the constitutional amendment that says “all elected and appointed officials … shall be subject to the code of ethics.”

But in Monday’s ruling, the court’s three-member majority noted that voters also reaffirmed the constitution’s “speech-in- debate” clause, which says, “For any speech in debate in either house, no member shall be questioned in any other place.”

In their opinion, Justice Francis X. Flaherty, Justice William P. Robinson III and retired Chief Justice Frank J. Williams turned to a different page in history, saying, “Speech-in-debate immunity is a venerable and important product of historical travails [and their resolution] in England.” They said “the importance of the privilege was not lost on the founders of this nation,” and it was included in Rhode Island’s first written Constitution in 1842.

All the justices agreed that the Supreme Court faced an “unusual constitutional conundrum,” with two constitutional provisions standing “in diametrical opposition to each other.”

The majority chose to resolve that conflict by saying that if we wanted to curtail the legislative immunity contained in the speech-in-debate clause, we needed to be a lot more explicit.

“Significantly, there is no indication in the language of the Ethics Amendment that it was intended to abrogate speech-in-debate immunity,” the three justices said. “And we are resolutely disinclined to abridge such a long-standing and widely accepted constitutional provision in the absence of an express and uncontroverted manifestation of electoral intent.”

Suttell would have resolved the conflict in a different way.

“I would hold that in matters concerning the ethical conduct of legislators, the Ethics Amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities,” he wrote. “Such a construction of our Constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986.”

I think Suttell made a compelling argument, but the majority also took a reasonable approach.

So it’s time to write a new page in history (or to edit a page in history). “At worst, it was a sin of omission,” Marion said. “So we need to go back and correct that.”

Marion emphasized that fixing this problem would merely return the state to the status quo that existed between 1986 and 2008. Ethics Commission lawyers have noted that over the previous two decades, no legislators had challenged the commission’s constitutional authority to enforce the ethics amendment against them. Irons, an insurance salesman from East Providence, pursued such a challenge after the Ethics Commission found probable cause to believe he had broken the Code of Ethics by using his public office to financially benefit his business associate, CVS.

Marion noted the speech-in-debate clause was designed to shield lawmakers from other branches of government or from lawsuits filed by citizens, and he said lawmakers could still enjoy those protections while being subject to Ethics Commission jurisdiction over their legislative activities.

On Tuesday, Governor Carcieri called for the Assembly to pass a resolution to place a constitutional amendment on the November 2010 ballot to strengthen the role of the Ethics Commission. “I believe the intention of the voters was to hold all elected officials, including members of the House and Senate, to the same high level of ethical standards,” he said.

Robert Wechsler — director of research for City Ethics, a nonprofit that advises local governments on ethics program — wrote about the Supreme Court ruling on the group’s Web site, saying, “The thing to learn from it is to explicitly, in big CAPITAL LETTERS, put your ethics authority over legislators in the charter and say that it overrides all common-law and, if there are any, charter-based legislative immunities for local government legislators.”

Also, Wechsler said, “One wonders why, if the speech-in-debate clause is so venerable and, as the majority decision states, the public is ‘the ultimate beneficiary’ of it, the public cares so little for this clause. And one wonders why, when the public, disgusted with the misconduct of its legislators, votes by an enormous margin to effectively override the speech-in-debate clause, its will is ignored in favor of a provision that was designed to protect legislators from a king — a provision that, venerable as it may be, the Rhode Island public, if it could vote directly on it, would almost certainly repeal as it applies to all ethics and criminal enforcement.”