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.”

No comments:

Post a Comment