Saturday, December 5, 2009

Larry Valencia and John Marion: We need a ‘holistic’ approach to R.I. ethics problems

01:00 AM EST on Saturday, December 5, 2009

In his Nov. 14 Commentary piece (“New ethics laws key to fighting Rhode Island corruption”), Robert Cushman discusses a number of important issues regarding separation of powers, ethics, and conflicts of interest in Rhode Island. We believe that those issues merit a response from the “government watchdog groups” he mentions.

We take exception with his statement that, because of a recent Supreme Court decision, the Rhode Island Ethics Commission has become “a toothless body lacking the tools needed to fight corrupt public officials.” There is no doubt that the June 29 decision in “William V. Irons vs. The Rhode Island Ethics Commission” made it more difficult for that body to enforce the code of ethics. However, it removed from the commission’s jurisdiction only one body (the General Assembly), and only specific acts of members of that body — “core legislative acts,” which the court enumerated as “proposing, passing, or voting upon a particular piece of legislation.”

It’s very important to note that the commission still has the ability to prosecute all other elected officials for violations of the code. And furthermore, the commission has the ability to prosecute members of the Assembly for a wide variety of actions not protected as “core legislative acts,” including in the court’s words, “speeches delivered outside of the legislature; political activities of legislators; undertakings for constituents; assistance in securing government contracts; republication of defamatory material in press releases and newsletters; solicitation and acceptance of bribes; and criminal activities, even those committed to further legislative activity.”

That said, our groups still believe that when the voters passed the Ethics Amendment in 1986 that created the Ethics Commission and saw in that amendment the language “All elected and appointed officials and employees of state and local government, of boards, commissions and agencies, shall be subject to the code of ethics,” they never would have perceived that members of the General Assembly would have even a limited immunity from that code due to “the speech in debate” clause in the Rhode Island Constitution. That is why we will be pushing legislation in the 2010 session of the General Assembly to put an amendment on the ballot that would let the voters decide whether legislators should enjoy immunity that no other public officials receive.

Mr. Cushman goes on to suggest that the real solution to the state’s problems lies with the “class exception” that exists in the code of ethics. We sometimes refer to it by the section number in the code: 7(b). We couldn’t agree more that the “class exception” is a problem. That is why we have long pushed the Ethics Commission to close this and other loopholes in the code. This is not an easy prospect, however, and the commission has shown reluctance to overturn the “class exception” in one singular act.

However, the commission has taken preliminary steps toward this goal by moving toward elimination of one particular loophole in the code. The commission is poised to change its longstanding policy of providing an exception for union members who are also elected officials. Currently public officials who are members of a union in a different city or town are allowed to negotiate contracts with different local affiliates of the same parent union. We support this change in position by the commission in what clearly is a conflict of interest.

However, we must note that the commission is making this change in a way that we think is less than ideal.

First, it is not making a change to the code itself, but rather in a “General Commission Advisory,” which is a document to provide guidance to those who might be seeking the commission’s advice. Second, the opinion of the commission is based on the “business associate” section of the code, and not the “conflict of interest” section. We feel this is a mistake because this situation is clearly not in keeping with either section. A member of a union is clearly a business associate of other local affiliates of that union. This relationship is particularly strong when the parent union sends professional negotiators into multiple jurisdictions. However, it is also a conflict of interest for a public official to negotiate with an organization of which they are a member.

What the commission is doing, however backward its approach, is to begin closing the loophole that allows people to self-deal. That is what the “class exception” is all about. Our groups did not push the commission to begin closing this loophole by targeting union members. We feel it is equally important that anyone serving as a public official should not be allowed to use his or her official capacity to provide benefits to members of the profession he or she is a part of, no matter what that profession is, and no matter if everyone in that profession benefits equally.

Shutting down the “class exception” is only one part of the puzzle that we need to solve in order to create a more ethical climate in Rhode Island. It’s important to remember that we have an ethics system that consists of institutions (the Ethics Commission, the Board of Elections), and processes (the code of ethics, our campaign-finance law) that need to be tended to in order to work properly. We can’t run around seeking to make changes without considering the health of the system as a whole. That is why ethics, separation of powers and campaign finance are all related.

Our organizations will continue to insist that appointments are made, and they’re in keeping with separation of powers, that the institutions are fully staffed and funded, and attempts to limit their authority are rejected when appropriate. We need to take a holistic approach to cultivating this system.

Larry Valencia is president of Operation Clean Government. John Marion is executive director of Common Cause Rhode Island.