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.

Annual Meeting a Success!

On October 29th over 140 people interested in good government gathered at Rhodes on the Pawtuxet to celebrate past victories and look toward the future at the Common Cause Annual Meeting. We awarded the Distinguished Service Award to Warren Galkin and the Excellence in Public Service Award to Thomas Bender. Thomas Heslin, Executive Editor of the Providence Journal, spoke about the future of newspapers and answered questions from the audience.

In Johnston, appealing a zoning decision costs $2,000

By By Mark Reynolds

Journal Staff Writer
JOHNSTON — John Jalowy wonders if the local building official has made a bad call, but contesting the inspector’s zoning decision will cost $2,000.

The fee for that type of appeal ranges from $125 to $300 in five nearby communities. In Cranston, the appeal costs $500.

Not seeing anything remarkable about Johnston’s zoning process, Jalowy would like to know why it costs $2,000 in his town.

The answer is that Johnston officials boosted zoning fees in 2004 to bring more revenue to the town. Now, more than five years later, critics say the charge for zoning appeals simply discourages people from exercising their rights.

In the current economic climate, government officials should keep such consequences in mind if they are tempted to offset declining tax revenues by raising various types of fees, said John Marion, executive director of Rhode Island’s Common Cause chapter.

Charging residents $2,000 to appeal the local zoning officer is like charging speeders $2,000 to appear in traffic court and contest a speeding ticket, Marion said.

“People should have the ability to appeal the decisions of government that affect their lives,” he said.

The fee is so exorbitant that it might violate Jalowy’s due process rights under the state Constitution, according to his lawyer.

“If a fee is determined to be excessive, arbitrary and capricious, it would constitute a violation of one’s substantive due process rights,” said the lawyer, Terence Fracassa of Warwick.

Jalowy, acting through a lawyer, recently alleged that some people might be living in an accessory dwelling unit on a neighbor’s property, in violation of zoning laws, and he asked the town’s building official to investigate. On Oct. 20, the official, Bernard J. Nascenzi, ruled that the habitation is legal because the occupants are related to the neighbor.

When the council raised various zoning fees in 2004, George Corrente, who directed Johnston’s Building Department at the time and has since retired, argued that increasing the fees would capture an extra $150,000 to $160,000 in revenue each year.

Since then, the steeper fee schedule has helped the town collect greater revenue from zoning activities, such as issuing building permits.

But the appeals business isn’t booming. Nascenzi is proud to say he’s only seen one appeal since he started working for Johnston in 2005.

That appeal was filed by CapLease, a company and local taxpayer that recently listed $1.6 billion in property assets on its balance sheet and reported more than $89 million in revenues during the first six months of 2009.

CapLease, the owner of FM Global’s former headquarters building, contested a building permit for the construction of FM Global’s new headquarters.

Jalowy, of 737 Central Ave., lives a few miles up the road from CapLease’s building.

He lacks the same resources for dealing with unfavorable zoning actions.

“The fee that he would have to pay to make such an appeal,” said Fracassa, “may make it very difficult, if not impossible, for him to pursue what he thinks is a right that is legitimate.”

Johnston’s zoning ordinance says that fees for various zoning permits, requests and appeals are “not to exceed actual costs incurred for mailing, legal advertising and professional services…”

It isn’t clear how town officials reconciled that language with the appeal fee when they set it at $2,000.

Nascenzi said the fee schedule was established before he started working for the town.

If someone can identify and document “a factual basis” for the $2,000 fee, it might not violate the state Constitution, Fracassa said. If officials studied the fee before they established it, there might be a report that contains such documentation, he said.

“I’m not sure if that has been done,” he added.

Johnston’s zoning ordinance also says that the local Planning Board shall review local zoning rules at reasonable intervals, no less than every five years, and also whenever changes are made to the town’s comprehensive plan.

More than five years have passed since the fee schedule changed and, this past July, at the request of the town’s planner, the Planning Board adopted a new comprehensive plan.

Mayor Joseph M. Polisena, who has been in office for almost three years, did not respond to a request for comment on the situation.

When Fracassa recently asked the Johnston Town Council to review the fee schedule, Polisena likened the excessive fee to other problems he inherited from his predecessor almost three years ago.

“I say this tongue in cheek,” Polisena told the council.

The council has agreed to have town lawyers review the fee and make a recommendation.

Said the Zoning Board’s lawyer, Joseph Ballirano:

“We’re here to serve the people, and help them, not to hurt them with excessive fees.”

Columnist Ed Fitzpatrick: Who should be redrawing districts after 2010 census?

At the Common Cause Rhode Island annual meeting, executive director John M. Marion pointed out an object looming on the political horizon: the once-a-decade process of redrawing political maps.

The Oct. 29 event drew about 140 people to Rhodes on the Pawtuxet. A flier noted that during its 39-year history, the “citizens’ lobby” has fought for an independent Ethics Commission, a merit-selection process for picking state judges and the “separation of powers” amendment to the state Constitution.

The flier also outlined the group’s “vision for tomorrow,” saying in part: “As we begin the next federal census in 2010, we will push for reforms that will make the goals of redistricting serve our citizens, and not the politicians. District boundaries should reflect communities, not incumbency protection.”

Marion said, “One of the leading problems in Rhode Island is that elections are not competitive. So we are going to try hard to make this the fairest redistricting it can be.”

I covered the last legislative redistricting process (in 2001 and 2002), and it was quite a ride, literally. I followed the redistricting commission from Woonsocket to Newport for public hearings. I wrote about the lawsuits and the charges of gerrymandering. I thought about compactness and contiguity. (And haven’t thought about them since.)

Back then, the process was especially complex and fraught with political peril because the General Assembly wasn’t just redistricting to reflect new census figures; it was also downsizing the House from 100 to 75 members and the Senate from 50 to 38 members to reflect a 1994 voter mandate.

Still, the next redistricting (based on 2010 census data) is bound to be intriguing. As Marion noted, “people are rewarded and punished politically with districts,” and with a battle under way to be the next House speaker, “the districts could reflect who supported the winners and who supported the losers.”

The process will also involve redrawing the congressional districts, and Marion warned that “somewhere down the road” Rhode Island could lose a district because it has some of the country’s least-populated congressional districts.

Redistricting is an intensely political process. But Marion noted that in 2008, California voters approved Proposition 11, which shifted the power to redraw many political maps from the state legislature to a 14-member Citizens Redistricting Commission. Also, he noted, the Ohio secretary of state is hosting a redistricting competition put on by groups such as Common Cause Ohio. The legislature will still redraw districts in 2011, but the contest will show what districts might look like based on criteria other than protecting incumbents.

Marion said Common Cause will push for a Rhode Island redistricting commission that does not include legislators or their representatives. A similar effort failed last time. But this time Common Cause also might create a “model redistricting commission” that would “show citizens what the maps could look like if politics was removed,” he said. (The idea comes from Yale Law School Prof. Heather Gerken.)

“Ultimately, I think the goal is to have something like California or Iowa, which is held up as a model, to have redistricting that isn’t done at the behest of the legislature,” Marion said. “The question is who should draw the districts — the people who have the most to gain by drawing districts that protect incumbents, or the voters who inhabit those districts?”

Journal editor underscores market for accurate news, suggests fee for online service

by John Howell

Nov 03, 2009

The day could soon come when the Providence Journal Company will charge readers for its online news.

Thomas E. Heslin, senior vice president and executive editor of the daily newspaper, suggested that possibility as he addressed the annual meeting of Common Cause Thursday at Rhodes-on-the-Pawtuxet.

Heslin’s touched on the cost of providing accurate, timely and dependable information on the Internet during a presentation where he outlined recent changes in the newspaper and the Journal’s commitment to covering local Rhode Island news.

“We’re at a birth of a new era,” Heslin said emphasizing that the Journal is “holding on to values of accuracy, fairness and balance” in its 24-hour coverage on its Web site. Yet, he added, “the financial landscape of the news industry is very complex” and the company is looking at ways “to effectively and fairly charge for news content on the Web.”

And in a question-and-answer session following his prepared remarks he was asked directly if the Journal would charge for news on the Web.

Heslin said he is confident the business will transform itself and the Journal as well as newspapers across the country will find a way of providing content on the Kindle and e-readers.

“We want to be a multi-platform organization,” he said “We’ve just started. It hasn’t been invented yet.”

Heslin did not elaborate on how or when the Journal might start charging for content on its Web site.

Yet in his talk Heslin underscored the importance of the Web and how Journal reporters are reporting breaking news minutes after it has happened and with updates thereafter. He said standards of accuracy are in place and that “there is a market for verification.” As for the newspaper he used last Wednesday’s edition to illustrate the reach of the Journal’s 80 reporters and photographers in providing Rhode Islanders a picture of the community. In particular he cited coverage of the General Assembly and developments concerning the H1N1 or swine flu pandemic.

Of the company he said, “We aspire to be the news organization to set the agenda…this is the mirror…this is the big picture.”

In response to a question from Peter Von Stein, Heslin defended A.H. Belo, the parent company of the Journal, as “a pretty good newspaper publisher.”

Von Stein expressed concern over the Journal’s future, observing that the newspaper’s circulation dropped by 19 percent in the past year; that Belo has trimmed Journal operations and that Belo faces its own financial problems.

“How do you plan for a future in Rhode Island with absentee ownership,” asked Von Stein. “I’m troubled with people that have no interest in Rhode Island.”

“Most big complex media problems are not as simple as they seem on the face,” Heslin responded.

He said the Journal “run independently” and it is the “stewardship” of the newspaper that is important.

Heslin didn’t have an answer for the man who lamented the Journal’s reduction in local news coverage and his question who would be keeping an eye on municipal officials. But when former Representative Nick Gorham surmised people are more disenchanted with the General Assembly than ever Heslin said, “we are committed to covering the General Assembly.” He noted that in addition to coverage through the Journal’s Web site readers are able to biographies of legislators and votes on particular bills.

That was of interest to John Marion, executive director of Common Cause of Rhode Island. Marion would like to see a listing of all votes taken by legislators accessible on line.

Marion highlighted the organization’s mission “to hold our leaders accountable” adding “and that’s what we’re going to do.”

He said that Common Cause is “trying to rein in the money that taints our politics” and is moving forward with its agenda to see that when redistricting occurs, which will happen following the 2010 Census, that those districts are more representative of the community rather than designed to keep the incumbent in power.

Common Cause recognized Warren Galkin with the excellence in public service award and attorney Thomas Bender with the distinguished service award.

A longtime supporter of Common Cause, Galkin served as a member of the organization’s executive director and assistant director search committee.

In comments after receipt of the award from Common Cause President Kevin McAllister, Galkin spoke about the importance of good government adding, “for a state that’s in dire need of good government.”

As for the award Galkin said, “in this stage of life I’m not going to turn anything down and it doesn’t come much better than this.”

A member of the Common Cause Governing Board, Bender was recognized for his pro bono work and in particular two recent briefs filed with the Rhode Island Supreme Court in the cases of Irons v. The Rhode Island Ethics Commission, and In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council).

In the Irons case, Bender argued that members of the General Assembly are not immune from the State Ethics Code while engaged in their legislative activities, and are not entitled to a jury trial when “probable cause” allegations of Ethics Code violations were found to exist. The Advisory Opinion sought by the Rhode Island House of Representatives sought the opinion of the Rhode Island Supreme Court on four issues involving the 2004 Separation of Powers Amendments to the Rhode Island Constitution, including whether those amendments were self-executing.

In his acceptance, Bender said it was a “privilege to do this kind of work.”

Rhode Island panel eyes conflicts of elected officials with union ties

By Steve Peoples

Journal State House Bureau

PROVIDENCE –– The state Ethics Commission is moving forward with a plan that would reverse a long-held position that largely guides the behavior of labor union members who are also elected officials.

Critics have long contended that organized labor wields tremendous influence in state and local affairs, at least, in part, because union members serve in the General Assembly and in local town councils and school committees. The Ethics Commission has consistently ruled that such officials may vote on union issues, and even participate in contract negotiations, so long as they don’t belong to the specific local union involved.

That may be about to change.

While a final vote is at least a month away, the commission has drafted a proposal that would prohibit elected officials from participating in any union business that affects not only their specific local union, but also the umbrella organization — such as the National Education Association — to which they may belong.

The issue arises most often, according to a commission analysis, with teachers elected to serve on school committees outside the district where they work. They have traditionally been allowed to vote on union issues, even though the NEA may represent teachers in both districts.

“After conducting research and receiving public input on this specific issue, the commission has concluded that the prior analysis applied to this issue is no longer valid,” reads the proposal discussed at the commission’s Tuesday meeting. The first of at least two required votes was scheduled for its next meeting, Oct. 20.

“I think it’s a major shift,” said commission Vice Chairman Ross E. Cheit, noting that the board welcomes public input. “If they don’t think this makes sense, I want to fully understand why.”

Organized labor has strongly opposed such a shift. In an interview Tuesday afternoon, AFL-CIO President George Nee warned of legal action should it become final.

“Instead of encouraging people to participate in the political process, they seem to be putting up more roadblocks and hurdles. They should listen to logic more than talk radio,” Nee said of the commissioners. “Obviously, we will be checking those issues with our attorney. If it can be the subject of legal action, I’m sure it will be.”

It’s unclear, however, whether the change would be subject to a court challenge.

The commission voted 5 to 2 Tuesday morning to address the matter by issuing a “general commission advisory,” as opposed to changing a specific rule related to the state code of ethics.

“I don’t think you can take an advisory opinion to court,” Cheit said. “It’s just advice.”

The policy shift –– which is backed by government watchdogs Common Cause and Operation Clean Government –– centers on the commission’s interpretation of the term, “business association,” as set in the state Code of Ethics. Traditionally, rank-and-file members have not been viewed as business associates of labor umbrella organizations such as the NEA or AFL-CIO, which consist of various local unions and receive a portion of each member’s dues.

The complicated issue has been visited 31 times since 1995, according to an analysis by commission staff attorney Esme DeVault. Almost half of those cases involved school committee members who were also members of teachers’ unions.

Valerie Zuercher serves as a recent example.

Elected to the Exeter-West Greenwich School Committee last November, she is also a social worker in the South Kingstown school district and therefore a member of that local teachers union and the larger umbrella organization, the National Education Association. The NEA also represents teachers in Exeter-West Greenwich.

In asking for an advisory opinion earlier in the year, Zuercher noted that the same NEA negotiator that represents her interests in South Kingstown also represents teachers in Exeter-West Greenwich.

The commission ruled there was no conflict.

But such advisories could go the other way should the new policy take effect, effectively barring Zuercher and others in her position from voting on teachers’ contracts or other issues involving locals represented by the NEA.

R.I. lawmakers close year’s business with a flurry

By Steve Peoples

Journal State House Bureau

PROVIDENCE — Nine hours after Thursday night’s action began, state lawmakers filed out of the House and Senate chambers for what would probably be the last time this year.

They recessed shortly after 12:30 a.m. Friday, ending a rare October gathering of the part-time legislature after approving a slew of high-profile bills that outlaw text messaging behind the wheel, require $7 saltwater fishing licenses, force lenders to help homeowners avoid foreclosure, and tighten the state’s drunken-driving laws on land and water.

As his colleagues swapped goodbyes around him, an exhausted Senate Majority Leader Daniel P. Connors defended the Assembly’s work early Friday amid Republican criticism that Democrats had largely wasted their time this week.

“I think we accomplished a lot of important things,” Connors said, noting that in addition to adopting a bevy of new laws, several study commissions have been convened to address economic issues and structural budget problems.

Overall, the Assembly approved virtually everything on its crowded calendars — and a few items that hadn’t been listed on the calendars — racing to pass legislation left in limbo after lawmakers abruptly recessed for the summer in the early-morning hours of June 27. This week’s action also includes the passage of laws to outlaw indoor prostitution, re-open the Westerly branch of the Division of Motor Vehicles, and require the police to record interrogations of suspects in serious crimes.

Attention now turns to Governor Carcieri, who could wipe away much of the Assembly’ recent work with the stroke of his veto pen.

“Some bills were transmitted very, very late,” Carcieri spokeswoman Amy Kempe said Friday, declining to specify when veto decisions might be made. “The team is expected to start the review process today with the governor.”

While there are enough Democrats to overturn the Republican governor’s vetoes, Assembly leaders don’t plan to reconvene their full membership until Jan. 5, according to Larry Berman, spokesman for House Speaker William J. Murphy. Lawmakers could overturn vetoes that day.

There is little question that the governor will exercise his veto power, as he has at the end of every legislative session.

While the Assembly resisted organized labor’s push to implement binding arbitration for teachers unions, they approved a controversial measure to increase the number of apprentices and other union workers on some construction projects.

Blasted as a handout to labor, AFL-CIO President George Nee later praised the move, which narrowly cleared the House before being passed overwhelmingly in the Senate.

“That’s a very important issue to the whole labor movement,” Nee said, noting that labor officials would lobby the governor’s office over the coming days against a veto.

The narrow passage of the apprentice bill, and legislative leaders’ unwillingness to approve binding arbitration, was cause for celebration for at least one labor critic.

“The public employee unions are on life support in that building,” said Rep. Douglas W. Gablinske, D-Bristol. “After decades of controlling the public policy agenda, there is a shift under way.”

Nee didn’t see it that way: “It’s not an easy place to do business when times are tough,” he said. “But we’ve been around a long time and we’ll be around a lot longer.”

Meanwhile, while the full Assembly likely won’t take any more formal votes this year, its business isn’t quite complete.

House Democrats will gather next week to discuss new legislative priorities and the state’s dire economic situation, according to Berman. The Senate, meanwhile, has convened four study commissions to examine budget and economic issues, according to Senate spokesman Greg Pare.

And both chambers will convene separate “economic summits” in early December.

This week, meanwhile, there were few items on the legislative calendars that weren’t ultimately approved.

But after the House passed a proposal that would wipe away criminal records of offenders with deferred sentences, the Senate failed to address the measure. It’s now considered dead, for this year at least.

The pace of this week’s action drew criticism from one government watchdog group.

Between Tuesday afternoon and the wee hours of Friday morning, lawmakers reviewed or voted on more than 200 proposals. Many were debated publicly in recent months, although some were changed in recent days.

“It was somewhat unbelievable to me how quickly it was moving. Sitting in the House gallery, I think I saw them do 23 bills in 20 minutes,” said John Marion, executive director of Common Cause Rhode Island. “People lose faith in the democratic process when they think it’s being sped up for the convenience of their elected representatives.”

ASSEMBLY SCORECARDPASSED

Prostitution

Criminalizes indoor prostitution

Saltwater fishing

License required effective Jan. 1; $7 fee

State name

Voters to decide on removing “Plantations”

Texting

Text-messaging while driving is banned

U.S. Senate vacancies

To be filled by special election, not gubernatorial appointment

Gambling revenues

Lincoln to get larger share from Twin River’s receipts

Drunken driving

Police can get warrant for blood alcohol test

Same-sex rights

Partners gain right to make funeral arrangements

Boating safety

Tougher penalties for minors

operating while intoxicated

Foreclosure prevention

New requirements for lenders to work with borrowers

Westerly DMV

To be reopened one day a week

N.E. Patriots plate

Portion of fees to support R.I. charities

Mixed martial arts

Competitions allowed

Interrogations

Police must record

in capital cases

Bar closings

Extra hour on weekends

with no alcohol sales

FAILED

Criminal records

Automatic erasure in 5 years

after deferred sentence

POSTPONED

Binding arbitration

To settle teacher contract disputes

Congratulations Rep. Driver

The House Judiciary Committee is voting now on a bill that the representatives had never seen. Congratulations Representative Driver for bringing that to everyone’s attention. The rules of the House are currently suspended and the House has no intention of obeying them.

R.I. General Assembly to reconvene over long list of issues

By Steve Peoples

Journal State House Bureau

PROVIDENCE, R.I. — The General Assembly returns to Smith Hill this week after a four-month hiatus that left uncertain the fate of scores of bills touching everything from taxes, cell phones, license plates and fishing to even the state’s official name.

Related links

Your Turn: What issues do you want the R.I. Assembly to prioritize?
There will be little time for warming up.

Legislative leaders have scheduled hearings or floor votes for 196 individual proposals between Tuesday afternoon and Thursday night. And that number is expected to grow.

What was initially planned to be a narrowly focused two-day gathering may become a likely clearinghouse for legislation that has, in some cases, lingered in political limbo for years.

The coming days may be dominated by news of lawmakers’ attempts to outlaw indoor prostitution, but they may also ban text messaging by drivers, require saltwater fishing licenses of Ocean State residents, allow mixed martial arts fighting and ask voters to decide whether to eliminate the word “Plantations” from the state name.

Other proposals, also expected to pass, include the creation of a New England Patriots license plate, the re-shaping the state’s Economic Development Corporation, the re-opening of the Westerly branch of the Division of Motor Vehicles and a measure stripping from Governor Carcieri the power to appoint a replacement in the case of an unexpected vacancy in the U.S. Senate.

“They’re still fine-tuning some of the legislation, but this is the bulk of it,” Larry Berman, spokesman for House Speaker William J. Murphy, said of the 128 bills posted on House calendars for public hearings or votes before Friday. The Senate listed another 68 as of Monday evening.

State Republican Chairman Giovanni Cicione said that Democratic lawmakers, who dominate the Assembly, are wasting taxpayers’ time.

“Nothing good can come of this,” he said. “They should not be coming back to tinker. If they’re coming back, they should be doing something substantial to address the economic disaster facing this state.”

This week’s gathering comes three months later than Murphy intended when he abruptly left the rostrum in the early morning hours of June 27. Suggesting that circumstances required Rhode Island’s part-time lawmakers to become a full-time Assembly, the speaker said he would schedule a July session.

That never happened. And subsequent efforts to reconvene ultimately failed. Until now.

The public first learned of the specific plan for the week when legislative leaders began to post committee agendas Friday afternoon. Most of this week’s plans, however, were posted throughout the day Monday.

The scope of the agenda apparently surprised several political observers.

“I thought it was going to be more targeted,” said John Marion, executive director of the government watchdog group Common Cause. “It seems like they’re going to try to finish the bulk of what was left on the table the morning of June 27.”

He said that most proposals have been debated already, but suggested the narrow timeframe may complicate efforts to properly review changes or new legislation that may surface.

“There’s been a lot of rhetoric that they consider themselves a full-time legislature,” Marion said. “There’s no need to rush through this in two days.”

The bills posted on the agendas enjoy the support of the House and Senate leadership and are likely to pass both chambers by the end of the week, according to Berman. Once the same version of a bill passes the House and Senate, it becomes law absent a gubernatorial veto.

“You can never predict for sure,” Berman said of the likely passage of this week’s agenda. “Nothing is 100 percent.”

Legislative leaders have suspended the rules, which normally require 48-hour notice of all committee and floor action. That means committee hearings can now be held with a few minutes notice in unusual places, such as State House balconies and hallways, just as has happened in the final days of recent Assembly sessions.

“We’re trying to abide by the rules as much as possible, but we may need some leeway,” Berman said.

Among the high-profile bills excluded from the agenda is a proposal to allow binding arbitration for teacher’s unions.

The contentious issue pitted taxpayer groups against organized labor in a special House labor committee hearing last week. It has also become a battle on the radio and television airwaves in recent days.

The state’s largest taxpayer group, the Rhode Island Statewide Coalition, budgeted $4,000 for a “public education campaign” consisting of 30-second radio advertisement warning that, “An unelected person could get the final say, locking your town into contracts it can’t afford.”

The National Education Association, meanwhile, refused to disclose how much it spent on a separate radio and television advertising campaign that described binding arbitration a different way: “Your homework assignment is to call your legislators and ask for their support in binding arbitration for teacher contracts,” says Jodi Olivo, a fifth grade Pawtucket teacher in one of two television advertisements, adding that binding arbitration would end teacher strikes, “work to rule,” and excessive legal fees.

NEA executive director Robert A. Walsh said he was “concerned, but not panicked” that the binding arbitration bill wasn’t posted on any agendas.

“You never know what’s going to come up at the very last minute,” he said.

The legislature also plans to address legislation that would:

•Allow police to force chemical tests on drivers involved in serious accidents

•Reduce the minimum sentences for some drug offenses

•Destroy the record of any crime for which an admitted criminal has been given a “deferred” sentence, regardless of the nature of the crime, as long as the offender stays out of trouble for five years

Common Cause Rhode Island Annual Meeting

Join us at the Annual Meeting of Common Cause Rhode Island, on Thursday, October 29th at Rhodes on the Pawtuxet. We will be having a presentation and discussion about the changing role of the media with Providence Journal Senior Vice President and Executive Editor, Thomas Heslin. Common Cause will also be honoring Thomas Bender with the Excellence in Public Service Award, and Warren Galkin with the Distinguished Service Award.

If you would like to receive information, or purchase tickets, please contact MaryBeth Marshall at (401) 861-2322 or email contact@commoncauseri.org.

Date:

Thursday, October 29, 2009

Time:

4:30 p.m. Business Meeting
5:00 p.m Cocktails/Registration
6:00 p.m. Dinner
7:00 p.m. Awards, Discussion and Questions

Location:

Rhodes on the Pawtuxet
60 Rhodes Place
Cranston, RI

Let’s All Obey the Rules

By: John Marion

On Wednesday, October 28th, the Rhode Island House and Senate are scheduled to return from recess. Common Cause Rhode Island asks that upon their return both chambers reinstate their rules.

In the closing days of the General Assembly session in June both the House and Senate suspended significant portions of their rules. These allowed them to meet late into the night (and in one case the next morning) and hold hearings without advance notice. Without the rules in place, members can even be asked to vote on bills that they haven’t seen in advance.

On October 19th Common Cause sent letters to the leadership in the House and Senate (click here to read the House letter and here to read the Senate letter) asking them to reinstate the rules upon their return. We followed that with letters to all members of both chambers.

We believe government should be open and accountable. The General Assembly faces no statutory deadline for finishing their work. We feel the people deserve a legislative process that is open and deliberative.

Newsmakers: Government Watchdogs.

Operation Clean Gov't, Common Cause guests

Updated: Sunday, 06 Sep 2009, 3:07 PM EDT
Published : Sunday, 06 Sep 2009, 3:07 PM EDT

EAST PROVIDENCE, R.I. (WPRI) - This week on Newsmakers: What to do with the Ethics Commission? Following a Supreme Court decision this year that protects state legislators from much of the Ethics Commission bite, there is a move to change the state Constitution. Executive Director of Common Cause John Marion along with the President of Operation Clean Government Larry Valencia outline their plan to put the Ethics Commission back on the General Assembly map.

Then a march to promote less government is planned on Washington DC for September 12th. Local organizer Doreen Costa talks about the mission.

Common Cause urges AG to keep letters public

On Friday, August 15, the Providence Journal printed an article entitled,
“Common Cause weighs in on letters,” written by Ed Fitzpatrick. The article highlights a letter sent by Common Cause RI to Attorney General Patrick C. Lynch about letters submitted on behalf of candidates for judicial office.

Click here to read the full Providence Journal article

Click here to read the August 13, letter sent to Attorney General Patrick C. Lynch

Commission to Choose Candidates for Superior Court Chief

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — After a two-month break, the Judicial Nominating Commission will be back this week to begin selecting possible candidates to be the next presiding justice of Superior Court.

The nine-member commission Tuesday will chose who it will interview to succeed Presiding Justice Joseph F. Rodgers Jr. following his retirement Aug. 28. The deadline to apply is Friday.

The commission also expects next week to begin advertising for applications for the state Supreme Court seat left open by Justice Paul A. Suttell’s elevation to chief justice, said Stephen J. Carlotti, commission chairman.

The commission in June completed a whirlwind round of interviews and public hearings for state bench vacancies, including the chief justice seat. Since the start of the year, the commission forwarded lists of finalists for five judgeships to Governor Carcieri.

Carcieri in May nominated Suttell, a former Republican lawmaker with six years on the high court, as chief justice. The General Assembly unanimously approved the nomination. In July, Suttell was sworn in with great fanfare after winning sweeping approval and wide praise from legislators.

In June, the governor selected Kristin E. Rodgers, a past partner with the Providence firm of Blish & Cavanagh, to fill the seat vacated by Superior Court Judge Vincent A. Ragosta’s retirement in May 2008. Rodgers’ nomination came the same day her father, Presiding Justice Rodgers, announced he would retire. She took her oath the day after Suttell.

Carcieri has yet to make nominations to the legislature for the five other judicial openings, including a District Court seat that’s been vacant since March 2008, the chief judge position on that court, a Superior Court seat and two on the Family Court. That number will rise to six with Rodgers’ retirement and possibly seven, if President Obama names Superior Court Judge O. Rogeriee Thompson to the 1st U.S. Circuit Court of Appeals seat vacated by Senior Circuit Judge Bruce M. Selya. Senators Jack Reed and Sheldon Whitehouse have recommended her.

By law, the governor “shall” select a nominee within 21 days of receiving the commission’s list of finalists. The governor has said he considers that deadline advisory.

State lawmakers agreed last session to extend to June 2010 a law that allows the governor to select nominees from lists of finalists submitted by the Judicial Nominating Commission over the previous five years.

First passed in 2007, the legislation was backed by Governor Carcieri and opposed by the government watchdog group Common Cause Rhode Island. Before its enactment, the governor could choose nominees only from a list of three to five finalists selected by the Judicial Nominating Commission for a particular judicial vacancy.

Under the law, the governor can choose from any finalist list generated by the commission for various court seats over the previous five years. The law does not pertain to chief judge positions or to the Supreme Court.

kmulvane@projo.com

Let’s Amend the Constitution

Common Cause proposes allowing the people to decide whether to the Constitution of the State of Rhode Island in response to the Rhode Island Supreme Court’s recent decision in William V. Irons vs. The Rhode Island Ethics Commission. We are asking the General Assembly to put the following language (additions in bold) on the ballot in 2010:

ARTICLE III

OF QUALIFICATION FOR OFFICE

Section 8. Ethics Commission – Code of Ethics – Jurisdiction. The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflict of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials of state and local government, of boards, commissions and agencies, shall be subject to the code of ethics and the jurisdiction of the ethics commission. The ethics commission shall have the jurisdiction and authority to investigate and adjudicate alleged violations of the code of ethics, including all acts otherwise protected by Article VI, Section 5, and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

ARTICLE VI

OF THE LEGISLATIVE POWER

Section 5. Immunities of General Assembly members. The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place, except as set forth in Article III, section 8 of this Constitution.

Common Cause leader: Get Money Out of Politics

by Russell J. Moore

slideshow

Perhaps the biggest myth surrounding the ongoing fight in Congress to overhaul the nation’s health care system is that politicians and their bureaucrats are crafting a bill opposed by the health care industry, and in particular, the insurance industry.

A report by Common Cause, a non-partisan national organization with a chapter in Rhode Island that seeks to make government more open and accountable, seeks to debunk the myth. The report, titled “Legislating Unger The Influence”, details that from 2000 to 2008, health insurance companies have spent $83,695,546.

In 2008 alone, the health insurance industry spent over $20 million in campaign contributions to Congressional candidates.

This year, with the health care debate raging in Congress and across the country, the health care lobby, including health care professionals, pharmaceutical companies and health insurance companies, are spending an average of $1.4 million per day, says Common Cause.

“Every issue that Congress has to address today is tainted by the current system of campaign contributions and money in politics,” said Bob Edgar, Common Cause national president.

Edgar should know. He spent 12 years as a Democrat member of the House of Representatives, and left politics after losing a Senatorial bid to Philadelphia Senator Arlen Specter (D-PA), who was then a Republican.

The loss, in which Edgar claims to have been outspent by the Specter campaign, emboldened him to work for campaign finance reform. After a stint Edgar took with the National Council of Churches, he joined Common Cause. Edgar was in Rhode Island for a fundraiser, and took time to sit down with local reporters late last week.

The health care debate, Edgar said, while a vitally important issue, is merely a microcosm for how things work in Washington. The result, he said, is politicians caring more about placating special interest groups instead of their own constituents.

“If I’m a congressional candidate in Rhode Island, I don’t really have to raise any money from my own constituents. I can rely solely on special interest groups to fund my campaign,” said Edgar.

Common Cause’s Rhode Island chapter supports a relatively diverse group of interests, some of which would appeal to conservatives, and others to liberals.

For instance, Common Cause supports the removal of the so-called “master lever,” which allows a voter to check off one box and vote for all candidates belonging to a particular political party.

On the other hand, Common Cause supports public financing for elections, a position that is supported by progressives but conservatives take issue with given the fact that it spends taxpayer money.

Edgar seemed to gloss over the fact that Obama broke his pledge to accept public financing for his presidential bid last year. The president did so with the realization that accepting public financing would neutralize what was to be his significant fundraising advantage.

In any event, Edgar said he was hopeful that Congress would overhaul campaign financing. That, he said, would prevent the influence of special interest groups in serious debates like health care.

“We’re not anti-lobbyists. We’re anti-money in the system. We’re lobbyists ourselves, but we’re sort of like the Don Quixote of lobbyists,” said Edgar.

John Marion, the group’s Rhode Island executive director, said that the part-time legislature often relies on lobbyists for information—not an ideal situation.

“I had a Representative once ask me who I was a lobbyist for and when I told him he said, ‘oh you’re the guys with the good information,’” said Marion.

That’s the case, Marion said, largely because the group lobbies only for good government.

Common Cause also advocates for more participation in politics, and would like to see universal voting.

“The best system is an educated public,” said Edgar.

Edgar also joked that as a Congressman, he felt he was more likely to be corrupted by his friend in Congress, as opposed to his foes.

“Your friends are more likely to corrupt you. Your enemies only want to defeat you, but your friends will try to corrupt you,” said Edgar.

Heard us on WRNI?

Hi, and welcome to Common Cause Rhode Island.

You’ve probably found yourself here because you heard about us on WRNI. We’re excited to be reaching out to potential new supporters through public radio. While you’re here we invite you to look around our website on some of the issues we’re working on. Perhaps you can join us for an educational forum on the future of the Ethics Commission on September 16th, or to hear about the future of newspapers at our Annual Meeting on October 29th. Or you can sign up to receive our email alerts. Common Cause, and our meetings and events, are open to anyone and we encourage you to take part.

If you have any questions about or organization, or would like more information about getting involved, feel free to contact us at contact@commoncauseri.org or call (401) 861-2322. And thank you for visiting.

Sincerely,

John Marion
Executive Director

Health Care Could Be Final and Fitting Tribute

By: Ed Fitzpatrick

From President Obama and Bill Belichick, from Nancy Reagan and Liam Neeson, the tributes poured forth Wednesday as the world learned of the death of Sen. Ted Kennedy.

But there could be no greater tribute to the Massachusetts Democrat, who died at home on Cape Cod late Tuesday at age 77, than passage of “bipartisan health-care reform that includes some form of a public option,” national Common Cause President and CEO Bob Edgar said before boarding an afternoon flight to Rhode Island.

Edgar recalled working with Kennedy on issues related to children and poor people when Edgar was a Democratic member of the U.S. House of Representatives from 1975 to 1987 representing a Pennsylvania district outside Philadelphia, and when he was general secretary of the National Council of the Churches of Christ.

Since 2007, Edgar has headed Common Cause, a national nonpartisan “citizens lobby” based in Washington, D.C., and he was headed to Providence to meet with the board of Common Cause Rhode Island.

During his 47-year career in the Senate, Kennedy made health care his top priority, Edgar said. “I think if he had any disappointments in his life — while he was helpful in getting children covered in the [children’s health insurance] program and working on education issues for children — the one issue that has eluded him has been comprehensive health care,” he said.

So there’s no better way to honor Kennedy than to push forward with the health-care overhaul, Edgar said. “It’s so important because we now have 46 million Americans with no health insurance, we have insurance companies that often turn down people with preexisting health issues, and we have many children outside the health-care network.”

Edgar predicted Kennedy’s death will provide momentum. And Sen. Robert C. Byrd, D-West Virginia, is already calling for the pending health-care legislation to be renamed for Kennedy.

But a Common Cause report warns, “Major health-care interests have spent $1.4 million per day this year lobbying Congress, so you can bet the legislative battle will not simply rest on the merits of each side’s argument.”

The June 24 report quotes former U.S. Labor Secretary Robert Reich as saying, “Big PhRMA and Big Insurance are gaining ground in their campaign to kill the public option in the emerging health-care bill.” And the report concludes, “As the nation confronts a multi-trillion-dollar health-care system that continues to rise in cost while leaving millions without coverage, the lawmakers charged with drafting and then voting on reform will have their ears full from health industry lobbyists and their campaign coffers full from health industry cash.”

Edgar compared the health-care proposal to a big block of melting ice. “Town hall meetings have generated more heat than insight,” he said. But, he said, “I believe, hopefully, cooler heads will prevail as [members of Congress] face the serious challenge of doing the right thing and not acting in a partisan way.”

Edgar said he’d like the country to celebrate the Christmas and Hanukkah holiday with “a comprehensive health-care reform package signed by the president. I think this is the most important action since the passage of Social Security.”

Edgar said he’d also like to see us pay more attention to Kennedy than we paid to Michael Jackson when he died. “Kennedy had weaknesses as well as Michael did,” he said. “But, in the end, there will be more of a lasting legacy for Senator Kennedy.”

Especially if Congress marks Kennedy’s death by fulfilling his life’s work.

efitzpat@projo.com

R.I. Ethics Commission Explains Rules Against Nepotism

By Randal Edgar

Journal Staff Writer

PROVIDENCE — Rhode Islands’ rules on nepotism underwent a major revision two years ago. Standards that had long applied to married couples were expanded to include household members. People who obtained a job or promotion through the influence of a relative or household member could now be prosecuted.

But not until last week did the Ethics Commission issue what is known as a general advisory on the new rules — an easy-to-understand explanation of the rules that provides examples of the sorts of activities that are not allowed, or allowed.

The advisory makes it clear that personal relationships and influence over money, budgets, contracts, jobs and promotions can be a dangerous mix.

One example: A member of a town council that votes on zoning board appointments cannot take part in the nomination or appointment of his cousin-in-law to the zoning board.

Another example: A school board member whose step-brother is a member of a local union cannot participate in contract negotiations with that union.

Sometimes the examples allow involvement, to a point.

A city council member whose live-in domestic partner is a city employee and union member cannot participate in contract negotiations with that union but can vote to approve the negotiated contract as a whole, according to the advisory.

Katherine D’Arezzo, the commission’s senior lawyer, said the advisory is intended to answer questions the commission hears on a regular basis.

“They’re the questions we see all the time, so we try to spell it out a little bit more in depth than just a reading of the code would give you,” she said.

The 2007 code specifies which relationships are covered by the state’s ethics rules. The list reaches as far as step-sons-in-law and granddaughters-in-law and step-uncles and step-first cousins, in addition to adding the broad category of household members.

John Marion, executive director of Common Cause Rhode Island, said the only relation that he sees missing is that of a spouse’s sibling’s spouse.

“We thought that they should amend the regulation to extend the definition, but that’s a bit picky,” he said.

The commission is also reviewing a general advisory on public officials and actions affecting their pay and benefits. That advisory will be before the board again next month, where it needs a second vote of approval to be issued, said Jason Gramitt, a commission staff attorney.

While many of the examples in the general advisory on nepotism seem straightforward, some are not so clear cut.

In the case of a city council member whose spouse is a unionized parks employee, the council member must request an advisory opinion before voting on a proposal to provide life insurance for all parks employees. If all parks employees would be similarly affected, the commission “could issue an advisory opinion allowing” the council member’s participation, the general advisory states.

redgar@projo.com

Common Cause Releases Legislative Scorecard

In the eighth Common Cause Rhode Island Legislative Scorecard, lawmakers’ scores fell below their 2006 level, which were the lowest on record. State Senators, on average, backed Common Cause positions at a rate of 64 per cent, while State Representatives averaged 56 per cent. During the 2007-2008 legislative session, state officials were focused on addressing the budget crisis yet still passed legislation that thwarts the voters’ will on two major Constitutional reforms: Separation of Powers (SOP) and Judicial Merit Selection. On the positive side, the General Assembly passed the first significant Open Records bill since 1998.

*Corrections*

* The printed version and earlier version of the legislative scorecard listed Todd R. Brien as State Representative from Woonsocket District 50 when it should have listed Jon D. Brien as State Representative from Woonsocket District 50.
* Two votes cast by Representative Steven John Coaty on January 9, 2008 were accidentally omitted from the printed and earlier versions of the legislative scorecard. Representative Coaty’s overall final score was listed as 76% and should have been listed at 79%. This omission did not change the overall House average score.

Both the electronic newsletter and spreadsheet were updated and labeled 08Aug14CORRECTED. We apologize for any inconvenience.

Below are the links to the legislative scorecard:
Click here for a copy of the 2008 Legislative Scorecard Newsletter (08Aug14CORRECTED)

Click 2008 Scorecard on the left panel to view the full House and Senate Spreadsheets.

Common Cause to Host Panel on Ethics Commission’s Future

By Katherine Gregg
Journal State House Bureau

PROVIDENCE, R.I. -- The Common Cause chapter in Rhode Island is holding panel discussion on the ramifications of the Rhode Island Supreme Court decision in the case of former Senate President William V. Irons, and what it means for the future of the state's Ethics Commission.

In a 3-to-1 ruling, the court said 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. The decision marked a victory for Irons, who had been accused of voting on legislation in a way beneficial to pharmacy giant CVS while collecting hundreds of thousands of dollars in insurance commissions from Blue Cross on a health-insurance policy for CVS employees in Rhode Island.

The panel will be moderated by Brown professor and ethics commission member Ross Cheit. Panelists will include Ethics Commission chairwoman Barbara Binder, lawyers Mark Freel and Tom Bender, the author of the ACLU and Common Cause briefs filed in the case; Ethics Commission lawyer and education coordinator Jason Gramitt; Common Cause executive director John Marion; and former Senate parliamentarian John Roney, the former Senator who championed a famously controversial law.

The so-called Roney Amendment, passed in 1998, allows the Ethics Commission to slap citizens with fines of up to $5,000 for filing "frivolous, unreasonable or groundless'' ethics complaints against a public official.

The Sept. 16 discussion will be held at Smith Buonanno Hall on the Brown University campus. More information about the panel discussion is available from contact@commoncauseri.org

Advocates Push to Revamp Magistrate-Selection Process

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — Their ranks have included the wife of a former House speaker, the Senate Judiciary Committee chairman’s sister and staff members of key state legislators, sparking criticism that the magistrate selection process is laced with politics.

And now matching bills have been submitted in the House and Senate that would subject magistrates to the same vetting as judges to ensure, supporters say, their selection is based on merit, not politics. They are backed by the government watchdog group Common Cause Rhode Island and the League of Women Voters of Rhode Island.

“I think it’s the fairest way to appoint magistrates, that they undergo the same rigorous review,” said Rep. Donna M. Walsh, a Charlestown Democrat who sponsored a similar bill that died in committee last year.

The measures would take the appointing authority for the state’s 20 magistrates away from the Superior Court presiding justice, Family and District Court chief judges and the Supreme Court chief justice.

Instead, magistrates, often a steppingstone to judgeships, would be selected in the same manner as judges. Interested individuals would apply to the Judicial Nominating Commission, which would forward a list of three to five candidates to the governor after a review and interview process. The governor would than have 21 days to submit a nominee to the state Senate for approval.

The bills come as the Senate on March 2 confirmed Superior Court Presiding Justice Joseph F. Rodgers’ selection of Patrick T. Burke to fill the opening created by Joseph A. Keough’s retirement as special magistrate in December. Burke, 45, has served as deputy assistant to House Speaker William J. Murphy since 2003.

“Our belief is that merit selection is broken,” said John Marion, executive director of Common Cause. He looks to other recent appointments that include R. David Cruise, former Senate President Joseph A. Montalbano’s chief of staff, as Traffic Tribunal magistrate, and William R. Guglietta, chief legal counsel to House Majority Leader Gordon D. Fox, D-Providence, as the tribunal’s chief magistrate.

“Now, we have Murphy’s aide?” Marion said.

Magistrates serve 10-year terms that can be renewed by the Senate and typically earn a base salary of $128,650, according to Craig N. Berke, court system spokesman. They have some of the same powers as judges, generally presiding over arraignments, motions and sentencing in uncontested cases. They do not hear trials, Rodgers said.

Rodgers defended his choice of Burke, saying it was no more political than then Sen. Lincoln D. Chafee’s backing of former state Supreme Court Justice Robert G. Flanders for the 1st U.S. Circuit Court of Appeals in 2006 or any other judicial appointment.

“Does that necessarily mean it’s bad? I don’t think so,” he said.

He chose Burke from among 27 applicants, he said, for his previous experience working with the pre-arraignment calendar he would be handling as magistrate and because he was well-respected as Murphy’s deputy assistant.

Rodgers said he wouldn’t object to placing magistrate selection under the JNC, but that the law should be written so the choice is made in consultation with the chief judges because the positions are specialized. For example, he said, magistrates assess sex offenders’ risk of reoffending, handle fines and restitution, and deal with juvenile truancy — duties that should not be relegated to judges.

“I honestly believe the chief judge of the respective courts knows better what the needs of the particular court might be,” he said.

Walsh first took aim at magistrate selection as a member of the Senate Judiciary Committee in 2000, when she sponsored legislation to change the confirmation process. She said it wasn’t politically popular at the time because then-House Speaker John Harwood’s wife, Patricia Lynch Harwood, had just been appointed Superior Court magistrate.

“I’m not quite sure what the resistance is,” she said, adding, “I think it’s a way of getting around things a little bit.”

Common Cause hopes the bill gains traction this time around.

Magistrate selection, Marion said, defies the changes to the judicial selection that voters approved in 1994 after two Supreme Court chief justices resigned amid scandal. Rhode Islanders, he said, called for appointments based on ability, not politics.

Join us for Speech in Debate Forum Sept. 16

Common Cause Rhode Island and the A. Alfred Taubman Center at Brown University are pleased to announce a panel discussion:

“The Rhode Island Ethics Commission in the Wake of the Irons Decision.”

Description: Please join us for a panel discussion about the decision of the Rhode Island Supreme Court in the case of Irons vs. The RI Ethics Commission and the future of the Commission in the decision’s wake. Hear from leading experts on the decision, as well as authorities on the Commission and advocates working to make changes in the wake of the Supreme Court’s opinion.

Moderator:

Ross Cheit–Professor of Public Policy at Brown and member of The Rhode Island Ethics Commission

Panelists:

Barbara Binder–Attorney and Chairwoman of The Rhode Island Ethics Commission
Mark Freel–Attorney and author of RI ACLU brief in the Irons vs. RIEC case
Tom Bender–Attorney and author of Common Cause RI brief in the Irons vs. RIEC case
Jason Gramitt –Staff attorney RIEC, and author of RIEC brief
John Marion–Executive director of Common Cause RI
John Roney (tentative) –Attorney and parliamentarian of Rhode Island Senate

Where: Smith-Buonanno Hall, Room 106 at 95 Cushing Street on the Brown University Campus.

When: Wednesday, September 16th at 7 pm.

Voters Must Decide On Ethics — Again

By: JOHN MARION

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.