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.

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