R.I. ethics oversight debate resumes

R.I. ethics oversight debate resumes

01:00 AM EDT on Wednesday, March 24, 2010

By Katherine Gregg

Journal State House Bureau

PROVIDENCE — The governor, lieutenant governor and secretary of state have all sent letters urging the House Judiciary Committee to let voters decide, in November, whether they want to exempt state legislators from the Ethics Commission scrutiny that applies to every other public official in Rhode Island, from councilmen to cemetery commissioners.

In her letter, Lt. Gov. Elizabeth H. Roberts called ethics legislation introduced by new House Speaker Gordon D. Fox early in this year’s legislative session essential to restoring “the public’s faith and trust in government.”

State Treasurer Frank Caprio came to Tuesday night’s Judiciary Committee hearing on the bill in person to urge lawmakers to plug the so-called “Irons loophole” created by a dome-rattling Rhode Island Supreme Court decision last June.

The focus of their remarks was the Fox-sponsored bill to let voters amend the state Constitution, in November, to restore the Ethics Commission’s jurisdiction over the 113 General Assembly members.

But one after another, the lawmakers themselves raised concerns about having an “unelected body” looking over their shoulders.

“I’ve been here a year and a half now,” said freshman Rep. Scott Pollard, D-Foster. “There aren’t any corrupt people in the building … you smile, but I know them and you don’t, OK?

“And if you do know them to be corrupt then I suggest that you call the attorney general’s office and seek [to have] them prosecuted because the people who serve, at least in my chamber, are good and honorable people.

“And this steals away the vote and the expertise that people bring to the room,” Pollard told spokesmen for the Rhode Island Tea Party and the citizens’ advocacy group Operation Clean Government, who had come to the State House to lobby for the bill.

Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, also voiced concerns about giving the Ethics Commission “virtually limitless authority to decide what constitutes a ‘conflict of interest’ or ethical misconduct when it comes to both legislators’ votes and their participation in the legislative process.”

As an example, he cited Republican Governor Carcieri’s effort four years ago to make “it illegal for a lawyer-legislator who performs criminal defense work to vote on just about any criminal justice legislation. … In practical terms, legislators could be barred from discussing or debating any of the issues about which they have the most expertise.”

Fox’s legislation was prompted by a June decision by the Rhode Island Supreme Court that dismissed ethics charges pending against former Senate President William V. Irons based on a novel reading of the state’s “speech in debate clause.”

Irons had been accused of using his public office to obtain financial gain for pharmacy giant CVS — a “business associate” — while collecting hundreds of thousands of dollars in insurance commissions from Blue Cross on a health-insurance policy for CVS employees in Rhode Island.

Irons’ lawyer argued — and the Supreme Court agreed — that the “speech in debate clause” insulates lawmakers from Ethics Commission scrutiny for any “core legislative act,” including “proposing, passing, or voting upon a particular piece of legislation.”

No vote was taken Tuesday on the fix-it legislation crafted by the citizens advocacy group Common Cause that Fox introduced on Feb. 4. Asked why he did not seek a vote, Fox said, through a spokesman: “I want to make sure that the language is correct before we ask voters to consider a Constitutional amendment. I want to review the testimony that will be offered tonight, both pro and con, and make sure we get it right.”

But some version of the ethics legislation appears headed for passage after more than a year in which the Ethics Commission has told lawmakers it can no longer give them even advisory opinions.

Most recently, Fox’s newly appointed House Labor Committee chairwoman Anastasia Williams asked the panel if her membership on the executive committee of the AFL-CIO and her chairmanship of the Labor Council for Latin American Advancement posed a conflict.

On March 5, the Ethics Commission’s executive director Kent A. Willever wrote back: “Absent a Constitutional amendment to clarify the original intent of the 1986 Ethics Amendment, the Ethics Commission is without apparent authority to respond to your request for independent advice.”

Speaking for Common Cause, lawyer and onetime congressional candidate Kevin McAllister said the proposal is not aimed at giving the nine Ethics Commission members any more power than they “exercised from the period of 1986 to 2008.”

RI lawmakers debate giving ethics panel more power

By Eric Tucker Associated Press Writer / March 23, 2010

PROVIDENCE, R.I.—Rhode Island's Constitution should be amended to allow the Ethics Commission to prosecute lawmakers for their votes, elected officials and advocates for good government testified on Tuesday.

A resolution introduced by House Speaker Gordon Fox would authorize a constitutional amendment to strengthen the quasi-judicial ethics panel so that lawmakers could be prosecuted for their votes and other legislative acts. The amendment would be decided by voters in a ballot question and, if approved, take effect next January.

The House Judiciary Committee heard testimony on the resolution on Tuesday.

The state Supreme Court -- in a decision upholding the dismissal of an ethics complaint against former Senate President William Irons -- last year shielded lawmakers from being prosecuted when they propose, debate and vote on bills or otherwise do their legislative jobs. The opinion relied on a constitutional provision known as "speech in debate," which reads: "For any speech in debate in either house, no member shall be questioned in any other place."

The resolution proposes adding the words, "except by the ethics commission," to the provision.

Critics say the Supreme Court's ruling weakened the commission's ability to police legislative misconduct and to target lawmakers who illicitly vote to advance their own interests or those of a business client.

"There is a loophole that has been exploited and that should not be allowed to stand," General Treasurer Frank Caprio, a Democratic candidate for governor, told the committee.

Other elected officials, including Lieutenant Governor Elizabeth Roberts and Secretary of State A. Ralph Mollis, released letters in support of restoring the commission's power.

But some lawmakers said they were concerned the amendment would give too much power to the Ethics Commission, an unelected, appointed body with power to prosecute public officials and hold trial-like hearings over alleged ethics violations.

"If a representative does something wrong, the strongest power against him is the ballot box," said Rep. Scott Pollard, a Coventry Democrat. "To turn over authority of your building to an unelected body that probably 98 percent of the public doesn't know by name, doesn't know by face -- I think it's a dangerous concept."

That criticism was echoed by the American Civil Liberties Union, which said the proposed amendment was too broad.

"It affects speech, it affects debate," said Steven Brown, executive director of the ACLU state affiliate. "It is not just the vote."

The Ethics Commission emerged from a 1986 constitutional convention and was an effort to tighten ethics oversight of elected officials. Lawyers for the commission and other supporters say they believe the amendment that created the panel created a narrow exception to the "speech in debate" clause by making all state lawmakers subject to the ethics code.

"If the intention of creating the Ethics Commission was to govern the ethics of all public officials, then certainly the legislature's a significant chunk of all public officials in this state," John Marion, executive director of Common Cause of Rhode Island, said in an interview before Tuesday's hearing.

The commission still has oversight of wrongdoing, like nepotism and financial disclosure violations. But leaving it unable to prosecute public officials for votes could have hampered some of its highest-profile cases, like the one against former Sen. John Celona, who in 2006 was fined a record $130,000 after admitting to ethics violations that partially involved his votes.

Poltical Scene: Ethics debate

Political Scene:

07:18 AM EDT on Monday, March 15, 2010

By Katherine Gregg and Randal edgar

Journal State House Bureau

Ethics debate

Are Rhode Island’s lawmakers capable of policing themselves in the absence of oversight by the state Ethics Commission?

Sen. Frank A. Ciccone III, vice chairman of the Senate Committee on Government Oversight, thinks they are.

The Providence Democrat has sponsored two bills that would spell out conflicts of interest and improper use of office and give the Senate Rules Committee the power to “investigate and make recommendations” on possible violations that are outside the purview of the Ethics Commission.

Ciccone says the bills would allow senators to “police ourselves until such as time as the Ethics Commission can.” But they drew opposition at a Rules Committee hearing last week.

Robert Benson of Operation Clean Government said, “Ethics oversight of a body by a body doesn’t work.”

John Marion, executive director of Common Cause, questioned how “the Senate could go about doing this in an evenhanded manner” without an independent body handling the investigations.

The debate stems from a June decision by the Rhode Island Supreme Court that effectively removed Rhode Island lawmakers from Ethics Commission scrutiny.

In a case involving former Senate President William V. Irons, the court said the “speech-in-debate” clause in the state Constitution gives legislators immunity from prosecution by the Ethics Commission for “core legislative functions” such as voting and speaking.

Rules Committee members voted to hold Ciccone’s bills for further study, meaning they are going nowhere unless Ciccone asks for further consideration, said committee Chairman John Maselli, D-Johnston.

Maselli said the next step is to see what happens with a bill sponsored by Sen. J. Michael Lenihan, D-East Greenwich, that would give voters a chance to close the hole in state ethics law. House Speaker Fox has introduced a similar bill.

Maselli said it seems likely that if the change goes to voters they would approve it. But that still leaves the question of whether something should be done in the short term.

“We have a whole legislative session that’s going to go by,” he said.

RIP to Granny D. (1910-2010), long-time advocate of campaign finance reform and relative of Common Cause Rhode Island Governing Board member Tory M.

Why the Senate shouldn't regulate its own ethics

by John Marion and Larry Valencia

Mar 02, 2010

There is a plan that has been introduced to the Rules Committee of the Rhode Island Senate that would allow that body to police its own ethics. Our groups, Common Cause Rhode Island and Operation Clean Government, will oppose that measure, and we’d like to take this opportunity to explain why.

This effort began with the Rhode Island Supreme Court’s decision in June of 2009 in the case of William V. Irons vs. The Rhode Island Ethics Commission. In that decision, the Court majority found that members of the Rhode Island General Assembly are immune from prosecution by the Rhode Island Ethics Commission for any “core legislative act.” The reasoning for their opinion rests on the idea that when the voters approved a constitutional amendment in 1986 creating the Ethics Commission, they did not simultaneously repeal the “speech in debate clause” of the Constitution that protects legislators from prosecution for these “core legislative acts.” Surely when the voters overwhelmingly passed that amendment that read in part “all public officials shall be subject to the code of ethics” they meant to include the General Assembly. While we side with the dissenting justice, Chief Justice Suttell, we have to recognize the import of the Court’s ruling: members of the General Assembly are not subject to the Code of Ethics when they are engaged in their core legislative functions. We need to remedy this, once and for all.

Immediately our groups mobilized to push for a constitutional amendment for the 2010 ballot that would allow the voters to correct what we feel was an oversight in the 1986 Ethics Amendment. Our proposed amendment would return the Ethics Commission to the status quo that existed between 1986 and 2008. That resolution is now before the General Assembly, and we hope they will pass it and let the voters decide.

In the meantime, the Rhode Island Senate appears poised to adopt a plan to avoid coming under the jurisdiction of the Ethics Commission by allowing the Senate Rules Committee (chaired by Senator Christopher Maselli of Johnston) to decide whether members of the Senate have violated the Code of Ethics. This would be done under the auspices of the discipline clause (Article VI Section 7) of the Rhode Island Constitution that allows each chamber to determine how to punish its own members. In the history of the Rhode Island General Assembly, this would be the first attempt to create such a structure.

Why do we feel this is a bad idea? To answer that question we think it is important to go back to the creation of the Ethics Commission in 1986. The Ethics Commission is one of only two bodies, besides the legislature itself, enumerated in the Rhode Island Constitution. Article III where the Commission resides in our Constitution, reads in part (from Section 7), “The people of the state of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct..” It goes on to say in Section 8, “The general assembly shall establish an independent non-partisan ethics commission … All elected and appointed officials and employees of state and local government … shall be subject to the code of ethics.”

This language that was passed overwhelmingly by the voters of the state calls for an independent body to enforce ethics for all public officials. The Senate proposal calls for internal oversight. This is a concept fraught with complications. How are members of the Rhode Island Senate expected to judge their peers? The term “peer pressure” exists for a reason. All legislatures are governed by rules that require comity in order to perform their business. That is why every day the Senate hears bills on a consent calendar. All members must consent to doing that day’s business. Independent ethics oversight is designed to prevent that comity from interfering with the enforcement of the Code of Ethics.

And what if a member of the leadership is accused of violating the Code of Ethics? Would a member of the rank and file, who owes their place on a committee, or their legislative grant, to the leadership be willing to find the a member of the leadership guilty of violating the Code? Would the minority party find it a useful tactic to file endless ethics complaints to sully the reputation of the majority? There are a seemingly endless number of complications with putting real ethics oversight inside the institution.

A second good reason the Senate should not adopt this role is because it duplicates what already exists in the Ethics Commission. The Ethics Commission has a staff of 12, including three full time investigators, and five attorneys. Their annual budget appropriation is over $1 million. Does the Senate intend to hire professional investigators and attorneys who don’t owe their jobs to the very Senators they’re charged with investigating and prosecuting?

While the Rhode Island Senate may feel it is the prerogative of the body to police itself, we believe there are a whole host of reasons why this is inferior to the system that was in place for 22 years in the State of Rhode Island. All our groups are asking is that the people of the state be allowed to determine what they meant by “all public officials” back in 1986.

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