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

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

By LARRY VALENCIA JOHN MARION

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.

Q&A with John M. Marion, executive director, Common Cause Rhode

Subject: Q&A with John M. Marion, executive director, Common Cause Rhode Island

Pub: Rhode Island Lawyers Weekly

Author: Jack Dew

Issue Date: 11/30/2009

Q&A with John M. Marion, executive director, Common Cause Rhode Island
by Jack Dew

PROVIDENCE, RI -- Age: 37

Graduated: State University of New York at Binghamton (1994), graduate work at Indiana University

Job: Executive director, Common Cause Rhode Island

Practice area: Common Cause is a non-partisan government reform advocacy organization.
Rhode Island adopted its merit-based judicial selection system in 1994, thanks in part to heavy pressure from Common Cause. Fifteen years later, the process is still evolving, and Common Cause has been advocating for changes that would increase the independence of the Judicial Nominating Commission. Common Cause Executive Director John M. Marion spoke with Lawyers Weekly’s Jack Dew about how far the judicial nominating process has come and where it’s going.

Q. It has been 15 years since the reforms. Have they been an improvement?

A. Yes, I think it has improved some things. Now, the first prerequisite for trying to become a judge in Rhode Island isn’t political connections, and that is the whole key to merit selection. Like any kid in the class, a lawyer can raise their hand and say, “I want to be a judge.” Prior to 1994, you couldn’t do that; you had to call the speaker of the House or the governor or someone close to them.

Q. What isn’t working?

A. The other parts of the system, the other actors, have not been fulfilling their role properly. The Assembly leaders and the governor are responsible for putting people on the commission, and they haven’t been doing that in a timely manner. At one point they reappointed someone even though the statute says there would be no reappointments. The governor currently has a list [of nominees for judgeships] that is five months old even though he is supposed to act within 21 days from the time the JNC sends him the list.

Q. Have there been any attempts to circumvent the system?

A. There have been a couple of attempts to circumvent the system. A law has been in place for three years that lets anyone who makes the list for a certain court but doesn’t get picked to remain eligible for any opening in that court for five years. That goes against the idea that a fresh list of the best qualified people is being given to the governor. Also, at the time the JNC was created, there were one or two magistrates in the court system. Now there are 21, and they don’t go through the merit selection process, so a whole body of judicial officers has been created outside of the system.

Q. How can the JNC be strengthened?

A. They need to indicate in some way that they expect to be treated like a mature institution, and, at the same time, they need to show their independence to the public. There was a proposal a number of years ago to ban ex parte communications between commissioners. We believe that those sorts of measures need to be taken up by the commission.

Q. If you could make a single change to the process, what would it be?

A. I would change the public perception of the process. No one has ever believed that they need to commit the necessary time and resources and attention to this process, so [the JNC] has never received a real budget, a real staff. The commissioners have overstayed their terms, the appointments have been made late, and no one has ever said that we should give this process the best chance we can for it to work as well as it can.

John Marion: Connecting the dots on Smith Hill

The Rhode Island General Assembly returned for a brief two-day session in late October to finish up business it had left in its June recess. The week before its advertised return, Common Cause Rhode Island sent an e-mail, followed by a letter, to every member of the General Assembly asking them to reinstate their operating rules for conducting business. The legislature failed to do so, and instead, both the House and the Senate broke several of their own rules. Only now, weeks after the Assembly’s short session, are we seeing strong evidence that their failure to reinstate the rules means our government business is being conducted behind closed doors.

The rules of the House and Senate are created to govern the behavior of the respective chambers. They specify everything from whether members can smoke, drink and talk on cell phones on the floor of the chambers (they cannot) to when a member may speak during a debate. Some of the most important provisions involve notice to both members and the public of committee hearings, floor votes, and access to bills.

It’s typical for the Senate and House to suspend those rules on public notice during in the final days of June as they rush to adjourn, finishing up all of the substantive work left over after the budget has passed. This year was no different. Both chambers suspended a large number of those rules governing public access and notice with one notable exception. This year the Assembly didn’t adjourn in June; rather it came back in October. And when it returned it didn’t put those rules back into force.

So, for example, the rules of the House prohibit the chamber from passing more than 50 bills in one day. On Oct. 29, the House passed over 70 bills. Does anyone believe that legislating that fast is the best way to act as a deliberative body? Yes, the vast majority of what they voted on were “duplicates,” bills that had passed both chambers already and now had to “cross over” and be voted on again. But it is asking a lot to expect legislators to remember each of the hundreds of votes they cast in June. It was an almost impossible task.

Common Cause called for reinstating the rules, in part so that the process would slow down and mistakes would be avoided. As we know from The Journal’s Nov. 4 article “Without notice expungements almost expanded,” it was only a simple miscommunication in the final hours that led to an error that derailed significant legislation. Common Cause takes no position on the issue of expungement of criminal records itself, but it is concerned that with bills like this the process is so rushed and confused that no one even knows what is happening.

The expungement bill has been around for a while, and the public has had a chance to weigh in on it at various points in the legislative process. The real concern about not having all of the rules in place is that new issues, never subject to the scrutiny of the public or even the members of the legislature itself, would emerge. And now we have strong evidence that this is exactly what happened. As the Oct. 30 article “R.I. lawmakers plow through heavy agenda to the end” points out, a new bill was introduced late in the evening, S 1060, “that would divert hundreds of thousands of dollars in gambling revenue from the state’s coffers to the Town of Lincoln,” and was immediately passed. No notice to the public, no notice to the members, no hearing in committee, no deliberation of members concerning this legislation took place in public. There was no democracy.

Did the language exist in another bill, under another bill number that had been heard many months earlier? Yes. But that could only be determined post hoc. The people, and the members, deserve to know what they’re voting on in advance of those votes. The public has the right to weigh in on issues that affect it. There is a reason rules exist, and that is to keep government open. This is clearly a case of closed government. But interestingly, it’s not the end of the story.

And now here is where the story gets interesting, and where we begin to understand why government without deliberation is government conducted not by all of our elected representatives. On Nov. 3, the Rhode Island Lottery Commission director moved to expand casino gambling at Twin River in Lincoln to 24 hours a day on weekdays (“24/7 slots coming to Twin River”).

Even the least cynical person can see that the legislature was effectuating an apparent quid pro quo with Lincoln in passing a new bill, late in the evening, during a rushed session, when no one was looking and apparently with the collaboration of the Carcieri administration, which includes the Lottery Commission.

Conducting an inquiry into how our government works is a necessary if not fun exercise. Why? Because it shows us that unless the rules are in place, all we can do as citizens is watch while decisions are made about our lives by our government without our input.

Common Cause will be there as long as is necessary to ensure that our government works for the people that elected it. Please join us in that fight.

John Marion is executive director of Common Cause Rhode Island.

Columnist Fitzpatrick says R.I. judicial selction process needs transparency

Roger Williams University law Professor Michael J. Yelnosk said he heard a lot of great stories as he was organizing a Nov. 13 symposium on how Rhode Island picks state judges.

But some people swore him to secrecy and others said “if they told me the truth they’d have to kill me,” he said, drawing laughs at the outset of the event. He said Senate President M. Teresa Paiva Weed (who’ll be a Roger Williams University adjunct professor in the spring) didn’t respond to his invitation to take part in the symposium. “And she wasn’t the only legislator who would not do so,” he said. “So my one regret is we have no representation from the General Assembly today.”

Also, a commission refused to grant continuing legal-education credits for lawyers attending the event, although lawyers received credits for listening to actor Richard Dreyfuss talk about civics education, Yelnosky said. (A spokesman said the event would have qualified for half a credit if it included 10 more minutes on relevant law.)

“You get the sense that some people would rather not hear about what’s happening in judicial selection,” Yelnosky said, calling the 50 people who did attend “the few, the brave, the retired, the tenured and the residing outside the jurisdiction.”

While no Assembly members participated, some panelists echoed the tired, predictable arguments you hear from those in power: That judicial selection should be more secretive, that critics (such as Common Cause) are elitist, and that political involvement and ties shouldn’t disqualify judicial candidates.

That last argument precisely misses the point, which is that you shouldn’t have to know a guy at the State House to become a judge. Panelist Alan S. Flink, a Common Cause board member and former Bar Association president, gets it. “Should people involved in politics be excluded? No,” he said. “Should everyone else be excluded? No.”

Panelist Stephen J. Carlotti, former chairman of the Judicial Nominating Commission, does not get it. Last year, he tried to keep The Journal from seeing letters sent regarding finalists. On Friday, he reiterated that releasing letters might “discourage people who might write us with derogatory comments about applicants, being afraid that those comments would be made public and then they’d have to pay the price.”

But the attorney general said Carlotti’s interpretation of the law was wrong, and the letters he released contained no negative comments. Carlotti talked about the “cost to transparency,” ignoring the cost of secrecy, which erodes public confidence.

Carlotti said he wonders “if the system we have created is, in fact, the right system.” He said he’d prefer a system that gives the governor greater “flexibility” to choose judges who share his philosophy. The governor would pick finalists and a commission would analyze them — “not in public, by the way” — before releasing ratings, he said.

Whatever the merits of the system favored by Carlotti, stewards of the current process (favored by 69.9 percentage of voters in 1994) should recognize the value of openness — an openness born of scandal and disgust with how those in power exercised their flexibility.

The process does need improvement. The JNC needs its own staff, better office space and funding. As Carlotti said, “This is, in fact, a neglected institution.” And as Common Cause executive director John M. Marion said, officials need to stop undermining and attacking the process. “We have the skeleton of a good system in place,” he said. “And now we have to put some muscle behind it.”

Twin River seeks to hire former R.I. Lottery lawyer

By Paul Grimaldi

Journal Staff Writer
PROVIDENCE — The lenders in control of the Twin River greyhound track and slot parlor have asked a federal judge for permission to hire the former legal counsel for the Rhode Island Lottery as a government-relations consultant, according to a court filing.

Robert M. Silva was the Lottery’s lawyer for 16 years, before retiring in May 2008, according to the Nov. 4 filing with the U.S. Bankruptcy Court in Providence. During that time, “Silva was intimately involved in a number of transactions between the [Rhode Island] Lottery and [the slot parlor], including the transfer of the [slot parlor’s] video lottery terminal license from its prior holder” in 2005.

The company that operates Twin River, UTGR Inc., filed for federal bankruptcy protection in June. It appears Silva’s hiring would be consistent with the state’s code of ethics, which generally prevents state employees from representing themselves or others before their former departments for one year after their state employment ends.

As the Lottery’s lawyer, Silva would not have been required to file financial disclosure statements with the state ethics commission, according to Jason Gramitt, staff lawyer with the Ethics Commission. There appear to be no rulings involving Silva on record.

The executive director of the government watchdog group Common Cause Rhode Island, John M. Marion, said Silva “satisfied the revolving door [prohibition]. He’s been out a year. He can make the jump.”

UTGR is a subsidiary of BLB Investors, a holding company made up of Kerzner International, Starwood Capital Group and Waterford Group LLC.

UTGR owed nearly $568 million to banks and other creditors, but had only $56.6 million in assets, when it filed for bankruptcy protection. Merrill Lynch Capital Corp., Wells Fargo & Co. and JPMorgan Chase Bank are among the lenders to whom it owes money.

Twin River’s lenders will pay Silva $5,000 month, plus expenses, to lobby state officials on the slot parlor’s behalf.

Lottery Director Gerald Aubin said yesterday that he last met with Silva sometime in late summer when the two men had lunch together.

Silva gave him no indication at that time that he was under consideration for a job associated with Twin River.

What’s unclear at this point is what legal spadework Silva may have done that could lead Twin River to become more profitable after he left his job.

“What did he do to position Twin River that now they can try to hire him?” Marion asked.

The request goes before U.S. Bankruptcy Judge Arthur N. Votolato on Nov. 17.

Suggested gift for the courts: A new judge

By Edward Fitzpatrick

Nearly a year has passed since District Court Chief Judge Albert E. DeRobbio Sr. died, yet Governor Carcieri has not nominated a replacement.

The Judicial Nominating Commission selected five finalists for the vacancy on June 3. Carcieri began interviewing at least some of the candidates before the commission had even picked those finalists (in careless disregard for the merit-selection process approved by voters in 1994). At the time, the governor’s spokeswoman explained that Carcieri had jumped the gun “out of an economy of time” so he could pick a nominee before the end of the legislative session. Yet here we are in November, and the governor has not chosen a nominee.

No doubt, the governor is facing a ballooning budget deficit and a deflating state economy, and he has made some fine picks to head the Supreme Court and Superior Court.

But state law says, “The governor shall fill any vacancy within 21 days of the public submission by the commission.” And while you might cut him slack for blowing the deadline once, Carcieri has made it a routine, leaving one Superior Court seat vacant for more than a year.

So why hasn’t the governor filled the top spot on the District Court — a busy venue that DeRobbio proudly called “the people’s court”? Why hasn’t he picked from a list that includes four District Court judges?

Carcieri spokeswoman Amy Kempe said, “The governor made a flurry of judicial appointments in the last few weeks of the General Assembly session, and he is continuing the vetting process. The chief judge of the District Court is a very important position of a very busy court system, and the governor wants to make sure he has the opportunity to meet with all the candidates and appoint the best person for the job.”

Common Cause Rhode Island executive director John M. Marion said governors originally had seven days to pick from lists of finalists. That deadline was extended to 21 days, but now Carcieri is “wholesale ignoring it” and, with no penalty for missing it, he “feels free to disregard it,” he said.

Yet appointing judges “is one of the core responsibilities of the executive. It should be a priority rather than an afterthought,” Marion said. “By not having a full complement of judges, we are not going to exercise the proper measure of justice. And it’s not just about justice. It’s about the legitimacy of government. If elected leaders don’t follow the law themselves, people lose faith.”

Rhode Island Bar Association President Victoria M. Almeida said, “While we would like appointments to be expeditious, it is more important to me and the bar that they be wise appointments.” She said the District Court “is not in paralysis,” acting Chief Judge Michael A. Higgins “has a long distinguished judicial career, and we have some of the best judges anywhere in that court.”

Almeida said, “Our democratic process, while imperfect, is more perfect than most, and it requires that judicial appointments receive the advice and consent of the Senate. Sometimes political consensus is necessary and is a challenge even in the most robust times.”

Still, if DeRobbio were alive, I bet he’d be urging the governor to act. In a January interview, Carcieri recalled that DeRobbio used to tell him, “Governor, I need [judges], I need them, get them to me, will you?” And as soon as he’d appoint one judge, DeRobbio would say, “Get the next one to me.”

So Carcieri need not wonder what to get the District Court for the holidays: a chief judge.

Newspapering the hard way

By DAVID SCHARFENBERG | November 4, 2009

Tom Heslin, executive editor of the Providence Journal, does not say much in public about the broadsheet. And little surprise. The ProJo, which demands transparency elsewhere, has issued a long string of “no comments” about its own affairs.

So Heslin’s keynote address at the annual meeting of Common Cause Rhode Island last week arrived with an air of anticipation. What sort of vision would he lay out for the state’s paper of record? What kind of strategy would he outline for an industry in freefall?

Heslin started his speech with an amusing anecdote from his first reporting job at the York County Coast Star in Maine — a tale of a harbor master who told him a bit too much about a spill during a telephone interview, believing he was from the York County Coast Guard.

Then he turned to a small inscription that appeared in the paper: THWTB, an abbreviation for “The Hard Way’s the Best” — a motto, Heslin suggested, that has guided his ca-reer in journalism. Make the extra phone call, the credo demands. Dig a little deeper. Do it the hard way.

It is an admonition from another era — a muscular charge that the ProJo aims to bring into the digital age, Heslin said.

But putting the executive editor’s vision into practice will be no small task. Doing it the hard way in an era of diminished resources is, well, hard. And placing an emphasis on the instantaneous, on-line update — a central project of Heslin’s ProJo — means less time for the rigorous reportage of the past.

That’s not to say anyone has a better idea for how to operate in an uncertain era.

The steady migration of advertising from print to the web, heavy layoffs, and the primacy of the 24-hour news cycle have papers across the country going shorter and shallower in their coverage, even as they try to keep up some semblance of the depth and perspective that separates the broadsheet from other media.

But the formula, however ubiquitous, does not appear to be working. Average weekday circulation at American newspapers for the six months ending September 30 was down 10.6 percent from last year, according to recently released data from the Audit Bureau of Circulations. At the ProJo, the drop was nearly 19 percent.

And the paper’s parent company, Dallas-based A.H Belo, just reported that it lost $5.8 million for the third quarter — better than last year’s losses, but losses nonetheless. In-deed, the “hard way” is an apt description of the path forward for a newspaper industry in dire financial condition.

But Heslin seems remarkably upbeat about the future of the ProJo. In his speech at Common Cause, and in a question-and-answer period afterward, he had few answers to ques-tions about the long-term survival of the newspaper.

But he voiced confidence that the “journalism of verification” — the straight-news kind — would find a market, just as the “journalism of assertion” would. That an industry in crisis would find some equilibrium.

Here’s hoping.