High Court Rules for Irons

BY JIM BARON

PROVIDENCE — In a case likely to have profound implications for government ethics and reform for years to come, the Rhode Island Supreme Court, by a 3-1 vote, has reaffirmed that General Assembly members have “absolute” immunity from questioning “by any other branch of government” about their votes and other legislative business.

To the dismay of good-government groups, the high court upheld a decision issued late last year by Superior Court Judge Francis Darigan that said former Senate President William Irons could not be called to account by the Rhode Island Ethics Commission for voting on a bill in 1999 and 2000 that affected two of the clients of his private insurance company, CVS and Blue Cross/Blue Shield of Rhode Island,
In an unusual wrinkle, all three justices on the prevailing side — Justices Francis Flaherty, William Robinson and retired Chief Justice Frank Williams — claimed co-authorship of the majority opinion in the most closely watched case in this court session. In most cases, one justice is assigned to put the court’s decision into words. Justice Paul Suttell, soon to become the Chief Justice of the court, signed his own dissent. Acting Chief Justice Maureen McKenna Goldberg recused from the case, citing a friendship with Irons’ wife, Mary.
Robert Arruda, the Operation Clean Government member who, along with Beverly Clay, brought the original ethics complaint against Irons in 2004, called the court’s decision “appalling,” saying it “ignores the rule of the people.”
Irons said it is proof that “our society gets it right. In the long run, the majority of people see it, follow it (and) understand it.
“I don’t know what else (someone) would need to believe in my innocence,” Irons told The Times shortly after the decision was announced. “I am at peace, and I know that I never did anything wrong. And I’m happy this day has come.”
Asked about a possible public perception that he “got away with something,” Irons acknowledged, “I know there will always be people who say that. For some people, someone being exonerated is not enough, but the U.S. Attorney and the Justice Department spent years of grand jury time and eventually concluded there was nothing to follow. I don’t know what more anyone can say.”
In a sense, the court found itself at the point of collision between the irresistible force of a 1986 constitutional amendment that called for all elected officials to be accountable to state ethics law and the immovable object of a “speech in debate” clause with roots in 15th century English common law that provides legislators immunity from encroachment by other branches of government. Irons and his attorneys argued the speech in debate clause while Ethics Commission attorney Jason Gramitt asserted that voters changed the constitution to hold legislators accountable for misbehavior and that intent should trump the immunity.
In the eyes of three of the four justices, the speech in debate clause won
“We cannot accept an invitation to read into the Ethics Amendment an unexpressed repeal of such an ancient and venerable hallmark of our form of government as is the immunity provided in the speech in debate clause without a clear and explicit directive for such an exception in the language of the Ethics Amendment itself,” the 18-mage majority decision states. “Because no such language is present, we decline to recognize any partial repeal of speech-in-debate immunity.
“Because we hold that the Ethics Amendment does not create an exception to the speech in debate clause and, because the alleged actions of Senator Irons were core legislative acts entitled to speech-in-debate immunity, we hold that the Ethics Commission may not question him with respect to those acts,” the ruling continues. “We do not accept the Ethics Commission’s argument that such a holding on our part emasculates the entire Code of Ethics with respect to members of the General Assembly. Indeed, the Ethics Commission remains responsible to enforce the Code of Ethics against legislators when they are engaged in activities other than core legislative activities.”
Among the activities for which lawmakers can be held to account the court listed were “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.”
Agreeing with the majority that the two constitutional provisions “stand in diametrical opposition to each other,” Suttell in his dissent came down on the side of the 1986 Ethics Amendment.
“In light of the very specific intent of the framers to adopt a comprehensive ethics amendment and in view of the history of the times and the state of affairs in 1986, it is my opinion that the express application of the ethics amendment to “[a]ll elected * * * officials” necessarily implies a limitation on the full reach of the speech in debate clause. In other words, I would hold that in matters concerning the ethical conduct of legislators the ethics amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities.
“Such a construction of our constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986 than an interpretation that places legislators beyond the reach of the ethics commission for violations of the code of ethics with respect to their performance of legislative activities,” Suttell wrote. “It would also preserve the full measure of protections accorded legislators by the speech in debate clause as to questioning from any person or entity except the ethics commission.”
The justices seemed to hint at an invitation of their own, for voters to once again amend the constitution to reverse the court’s ruling.
“If the citizens of Rhode Island wish to empower the Ethics Commission to investigate and prosecute legislators with respect to their legislative actions, notwithstanding the operation of the speech in debate clause, they most certainly have the power to do so,” the decision states.
Arruda said the ruling represents “a dark day for Rhode Island, and Rhode Island is already suffering through pretty dark days. It’s a terrible, terrible decision. It gives the General Assembly carte blanche.”
A new constitutional amendment, as suggested by the court “is absolutely necessary here,” Arruda said, while at the same time worrying that attempting to get one passed would be “an exercise in futility. I don’t see it happening. It is very depressing.”
Gramitt, the Ethics Committee attorney, took the ruling in stride, although he did allow “we hoped for a different result.”
He said the significance of the decision is that “it removes such a visible aspect of our enforcement authority. These types of cases are the ones that bring out the reporters and TV cameras, so it is what people think about when they think of our cases. But in fact those kinds of cases against legislators are a small part of what we do. It’s high-profile and significant, but maybe 1 percent of what we do.”
Ethics Commission Chairman Barbara Binder said the court “has taken away a critically important tool in the Ethics Commission’s arsenal for ensuring that legislators engage in the highest ethical standards.
John Marion of Common Cause of RI “will spend much of its time” in the near future, advocating for a constitutional amendment to make the Ethics Amendment apply to legislators, the speech in debate clause notwithstanding. He noted there is already language for a proposed constitutional amendment introduced in the House of Representatives by Rep. David Segal of Providence that would do just that.

Open Records Bill Passes House, But Supporters Now Oppose It

by Russell J. Moore

After a two-year struggle, the House of Representatives passed an open records bill that supporters say did more to weaken the law than strengthen it.

The bill’s supporters, a diverse group including the Rhode Island Press Association (RIPA), the American Civil Liberties Union (ACLU), Common Cause Rhode Island and the League of Women Voters had been involved in a tense, delicate negotiation with the Attorney General’s office, state police and the Rhode Island Chief of Police’s Association for months.

The groups involved struck a deal all sides could live with that mandated arrest records that included time, name, age, address and charge be released within 24 hours. Originally, supporters hoped to have the arrest location included in the report but law enforcement officials thought it would intimidate witnesses.

But when the bill reached the House floor on Saturday, the bill became something the original supporters decided they could no longer live with.

The House bill mandates that law enforcement officials must release details of an arrest within 24 hours of a request for a police report but excludes narrative reports.

At that point, the bill became something weaker than is currently in place, according to Scott Pickering, president of RIPA and managing editor for East Bay Newspapers. Attorney General Patrick Lynch has consistently interpreted the current law to include narrative reports.

“The common response from police departments around the state would be a half sheet of paper saying who was arrested, at what time, along with their addresses and ages,” said Pickering.

He says without the narrative reports, the public would have no way of knowing the most significant details of an arrest.

But Representative Peter Kilmartin (D-Pawtucket), a police officer, said he thought the Senate bill would be a burden to police departments. The 24-hour request, he said, would be difficult for understaffed police departments to comply with.

Kilmartin also said releasing narratives could lead to botched investigations or giving law enforcement incentives to document less information.

“If an investigation is ongoing, the legislation as proposed may have an effect of forcing detectives to not put anything in writing,” said Kilmartin. “And I’m a guy who thinks there should be as much documentation as possible.”

The House bill is currently in limbo. House Sponsor Edith Ajello (D-Providence) asked that the bill be kept on the floor and not transmitted to the Senate. It is still unknown whether or not it will arrive back in the Senate chambers.

If it does, Senate Sponsor J. Michael Lenihan (D-North Kingstown, East Greenwich, Warwick) would be in the awkward position of lobbying against his own bill, he said yesterday.

“I would urge that the bill simply be not brought up or brought back to committee,” said Lenihan. “I would have trouble supporting that bill.”

In all likelihood, the bill will be held in the House and expire once the session ends. Interviews with supporters of the bill made it clear that they would make another go of it in the next legislative session.

Lenihan made it clear he wasn’t happy.

“I’m more than disappointed. I’m disheartened. This is a bill we’ve been working on for two years and an issue I’ve been working on for 10 years,” said Lenihan.

He’s not the only one.

“This is very frustrating. There were a significant number of groups who worked very hard on this. To see it unravel out of the blue was very troubling,” said Steve Brown, executive director for the Rhode Island Chapter of the ACLU.

Brown took issue with those who amended the bill, particularly the notion that narratives would jeopardize ongoing investigations.

“The notion that drug kingpins aren’t going to be aware of the arrest of their comrades until they read a police narrative is absurd on its face,” said Brown.

But Kilmartin had his own critique of the ACLU.

“I don’t think the ACLU cares what happens. All they care about is having all the information out in the open regardless of what could happen to investigations,” said Kilmartin.

High Court Rules in Irons’ Favor on Ethics Prosecution

By Mike Stanton

Journal Staff Writer

PROVIDENCE — Rhode Island legislators can be prosecuted for ethics violations involving their political activities, questionable acts on behalf of constituents or businessmen –– but not, the Rhode Island Supreme Court ruled Monday, for their official legislative votes or actions.

In a historic and long-awaited decision, the court ruled 3 to 1 in favor of former Senate President William V. Irons, who had been accused of acting on pharmacy legislation despite collecting hundreds of thousands of dollars in insurance commissions involving the CVS drugstore chain and Blue Cross & Blue Shield of Rhode Island.

Retired Chief Justice Frank J. Williams and Justices Francis X. Flaherty and William P. Robinson III ruled that the Rhode Island Constitution’s speech-in-debate clause gives legislators immunity from prosecution by the state Ethics Commission for their official votes or legislative duties.

Related links

Extra: R.I. Supreme Court ruling in William V. Irons vs. R.I. Ethics Commission et al

The decision upheld a ruling last year by Superior Court Judge Francis J. Darigan Jr. dismissing ethics charges against Irons.

Justice Paul A. Suttell, who was confirmed last week by the General Assembly as the next chief justice, was the lone dissenter. He argued that Rhode Island voters intended to carve out a narrow exception for ethics violations when they adopted a 1986 constitutional amendment creating the Ethics Commission.

Justice Maureen McKenna Goldberg recused herself because she is a friend of Irons’ wife.

John A. Tarantino, a lawyer for Irons, hailed the decision as a victory not only for his client, but for Rhode Island.

“The public should be pleased by this decision,” he said. “They may not like the result, but if the Constitution is upheld and it’s what the people enacted, the system works.”

Tarantino said that Irons was pleased and relieved by the decision, which ended a five-year legal struggle during which he also was the target of a federal State House corruption probe, Operation Dollar Bill. While former Sen. John A. Celona and ex-House Majority Leader Gerard M. Martineau were convicted of selling their office to CVS and Blue Cross, authorities ultimately chose not to charge Irons.

Corrupt legislators can still be prosecuted by the Ethics Commission, said Tarantino; the key difference is that now their actual vote or official action can’t be used as evidence.

Jason Gramitt, an Ethics Commission lawyer, said that the decision will make the commission’s job policing legislators more difficult.

“It’s a significant decision,” he said. “It removes such a visible aspect of our enforcement authority. For now, we will not be questioning their core legislative activities.”

In proving a quid pro quo between a legislator’s official actions and some undue influence, the commission won’t be able to use the official act at the center of the illicit bargain.

Tarantino said that proof could come through other evidence: a letter, a phone call, a meeting. “You just can’t use the vote as evidence.”

Said Gramitt: “You still can’t sell your office. To prove that, however, we have to prove an agreement. But whether they kept their end of the bargain [by voting a certain way], we can’t use. We’ll have to look for more smoking guns.”

While legislators are still bound by other aspects of the state Code of Ethics, for instance on gifts and outside employment, Gramitt said the commission will stop issuing advisory opinions to lawmakers regarding whether they could vote on certain issues.

John Marion, executive director of Common Cause Rhode Island, lamented the decision for ignoring what he said was Rhode Island voters’ historic intent in creating the Ethics Commission and for gutting the agency’s powers to police corruption at the State House.

“Today the Rhode Island Supreme Court dealt a sharp blow to ethical government in Rhode Island,” said Marion. “By doing this, one of the main tools that the people of the Rhode Island deemed necessary for policing the ethics of Rhode Island government has been removed.”

Marion called on the legislature, when it comes back into session later this summer, to pass a bill sponsored by Rep. David A. Segal, D-Providence, that calls for a referendum on a constitutional amendment placing legislators under the authority of the Ethics Commission, notwithstanding the speech-in-debate clause.

The Supreme Court said Monday that the voters could change the Constitution to do so.

House Speaker William J. Murphy, D-West Warwick, did not respond to requests for comment.

THE LEGAL STRUGGLE over the future of Rhode Island ethics enforcement is rooted in a historical concept that dates to the 15th-century English Parliament, carried through the American Revolution of 1776 and was enshrined in the first Rhode Island Constitution, in 1852.

The so-called speech-in-debate clause was designed to allow lawmakers to freely express themselves without fear of retribution. The Rhode Island Constitution says no legislators “shall be questioned in any other place” regarding their official votes or actions. But in 1986, after a Constitutional Convention, Rhode Island voters approved an amendment creating the Ethics Commission –– and a legal quagmire that justices waded through in Monday’s 28-page decision.

The majority opinion, by Flaherty, Robinson and Williams, quoted Thomas Jefferson that this important legislative immunity exists “in order to give to the will of the people the influence it ought to have.”

Notwithstanding the 1986 ethics amendment, the majority wrote, Rhode Island voters “reaffirmed” the speech-in-debate clause when they “adopted a neutral rewrite” of that provision the same year. The intent of the clause, the majority said, is not to protect legislators from being prosecuted for acting to benefit themselves, but to protect the public by allowing elected officials to carry out their duties without fear of prosecution.

“We wish to stress in the strongest possible terms, however, that it in no way grants a legislator the right to transgress the Code of Ethics or any other law,” the majority wrote. Unprotected actions include political activities, efforts for constituents, assistance in securing government contracts, soliciting and taking bribes and criminal activities –– “even those committed to further legislative activity.”

Here, the majority said, Irons’ actions involved “core legislative acts.”

The majority and Suttell agreed that the 1986 amendment created a conundrum –– pitting the speech-in-debate clause against the power of an independent Ethics Commission.

“If the citizens of Rhode Island wish to empower the Ethics Commission to investigate and prosecute legislators with respect to their legislative actions … they most certainly have the power to do so,” the majority wrote.

Suttell countered in his dissent that the 1986 ethics amendment carved out an exception to the speech-in-debate clause “to achieve a framework for more responsible and accountable governance.”

“In essence, the majority chooses to accord greater import to ‘an ancient and venerable hallmark of our form of government’ than to the more newly minted ethics amendment,” Suttell wrote.

Although he retired early this year, Williams has continued to hear cases while his replacement was chosen; since Suttell already sat on the court, his ascension still leaves a vacancy on the court.

mstanton@projo.com

Separation of Powers Prevails!

On Thursday, June 25th, the Rhode Island Senate provided advice and consent to four current members of the Coastal Resources Management Council. Three of those members had never previously received the Senate’s approval. From the Senate Journal:

Upon motion of Senator Connors, seconded by Senator Algiere, the following measures on today’s Consent Calendar, by unanimous consent, are read and passed, upon a roll call vote with 34 Senators voting in the affirmative and 0 Senators voting in the negative as follows:

YEAS- 34: The Honorable President Paiva Weed and Senators Algiere, Bates, Blais, Connors, Cote, Crowley, DaPonte, Devall, DiPalma, Doyle, Felag, Fogarty, Gallo, Goodwin, Jabour, Lanzi, Lenihan, Levesque, Lynch, Maher, Maselli, McCaffrey, Metts, Miller, O’Neill, Perry, Picard, Pichardo, Ruggerio, Sheehan, Sosnowski, Tassoni, Walaska.

AYS- 0:

This seemingly unremarkable event is a huge victory in the march toward Separation of Powers in Rhode Island. Common Cause has long advocated that the 2004 Separation of Powers amendments are self-executing in nature. With this vote, the Governor and Senate took steps to bring the council into compliance with those amendments, all without new authorizing legislation.

Supreme Court Extends “Speech in Debate” Immunity to General Assembly

Today the Rhode Island Supreme Court carved out a special immunity from ethical oversight for the General Assembly. In ruling in favor of the plaintiff in William V. Irons vs. Rhode Island Ethics Commission, the Court has decided that the Rhode Island constitution’s “speech in debate” clause shields members of the General Assembly from prosecution by the Ethics Commission on their “core legislative functions” such as voting and speaking.

“Today the Rhode Island Supreme Court dealt a sharp blow to ethical government in Rhode Island” says John Marion, executive director of government reform group Common Cause Rhode Island. The case was a result of an appeal of a Superior Court decision by the Rhode Island Ethics Commission. The Superior Court ruled that former Senate President William Irons was immune from prosecution based on the “speech in debate” clause of the Rhode Island Constitution. Marion added, “By doing this, one of the main tools that the people of the Rhode Island deemed necessary for policing the ethics of Rhode Island government has been removed.”

Common Cause Rhode Island calls on the Rhode Island General Assembly to put on the ballot a proposed constitutional amendment that restores the power of the Ethics Commission to investigate, and if necessary, prosecute members of the General Assembly for any wrongdoing that may occur. Given that the General Assembly has yet to adjourn for 2009, and in the words of Speaker Murphy last Saturday, “we’re a full-time Legislature now” we feel it is incumbent upon them to pass legislation that lets the people decide if members of the General Assembly deserve immunity that no other elected officials in the state enjoy. By passing House bill 6070, or any similar bill that may be introduced as a result of this decision, the Assembly can accomplish this prior to the end of the legislative session and let the people decide in 2010 whether legislators deserve immunity. As Justice Suttell points out in his dissent in this case, it is important to look at the history of what the voters desired in passing the 1986 ethics amendment. Since the majority of the Court disagreed with what we feel the voters wanted, it is time again to let the voters decide.

Common Cause Rhode Island is pleased with the decision of the majority to not take up the question of whether those prosecuted by the Ethics Commission have a right to a separate jury trial. We feel that Judge Darigan’s decision on this matter was correct, and any attempt to remove the ability of the Commission to decide the matters before them (after first providing immunity under “speech and debate”) would be the equivalent of taking two legs out of a three legged stool.

Common Cause filed amicus briefs on behalf of the Ethics Commission in the case.

4 Incumbents Recommended for Coastal Board

By Peter B. Lord

Journal Environment Writer

Governor Carcieri, in an effort to bolster the shorthanded Coastal Resources Management Council, has submitted the names of four of its members to the Senate for reappointment.

The Senate Committee on Environment and Agriculture was expected to review the nominations Thursday evening.

But even if the nominees are approved, the council is still down to just seven members, the number it needs for a quorum. Many officials are concerned that a skeletal council won’t be able to review and vote on critical projects looming in the near future, particularly a $1.5-billion coastal wind farm and its related developments.

Since January the council has canceled several meetings because it couldn’t enlist enough council members to attend. What’s worse, existing council members will have to recuse themselves when conflicts arise, and one recusal would leave the committee unable to operate.

One council member is W. Michael Sullivan, director of the state Department of Environmental Management. The DEM is involved in many cases that come before the council. Also, Chairman Michael Tikoian recuses himself whenever attorney Joseph DeAngelis brings cases before the council, and DeAngelis is involved in many cases.

The Senate has approved one bill that would reconstitute the council and allow for more members. A House committee Thursday was set to consider an entirely different bill. Time is running out to get either one through both sides of the legislature.

Meanwhile, Common Cause Rhode Island is arguing that the governor has the authority to simply appoint more members.

Carcieri on Wednesday presented the names of Paul Lemont, Ray Coia and Donald Gomez. They all serve on the council, appointed at a time when the Senate’s advice and consent was not necessary. Amy Kempe, Carcieri’s spokeswoman, says the governor is resubmitting them to the Senate now as a courtesy. A fourth council member, Bruce Dawson, had previously been appointed to the council and had received Senate approval.

Gomez’s term was not up, Kempe said, but the Senate asked that his name be resubmitted as a courtesy.

plord@projo.com

Voters Given the Chance to Drop ‘Providence Plantations’ from R.I.’s Name

By CYNTHIA NEEDHAM, STEVE PEOPLES and PHILIP MARCELO

Journal State House Bureau

Rep. Douglas Gablinske, left, and Rep. Arthur Corvese grab a bite and look over information between votes.

The Providence Journal / Glenn Osmundson

After a furious three-day stretch of voting, Smith Hill lawmakers sputtered toward adjournment late Friday night, fighting to whittle down a mountain of bills that remained. By 10 p.m. the Senate called it quits and went home, but the House continued marching through its calendar without a definitive end point.

Throughout the afternoon and evening, the General Assembly approved scores of bills big and small, the most dramatic of which would ask Rhode Island voters to decide whether they want to change the state’s name from the State of Rhode Island and Providence Plantations to simply Rhode Island.

Proponents say dropping “Providence Plantations” from the name would wipe away images of the slave trade and help erase years of pain.

By dusk, the full Senate approved the plan, following House passage a day earlier. Unless vetoed by the governor, the new law would permit a statewide referendum in 2010.

“Now, we can really begin the healing process,” said Sen. Harold M. Metts, the bill’s sponsor.

Friday night’s action also included Senate approval of legislation that would create a long-awaited school-funding formula, and another that would give $10,000 tax write-offs to people who donate organs.

On the House side, lawmakers approved plans to allow round-the-clock, seven-day-a-week gambling at Twin River, while requiring the Lincoln slot parlor to continue dog racing; and a bill mandating that foreclosed properties be properly maintained by the banks that take them over.

Following hours of debate in un-air-conditioned –– and sometimes steamy chambers –– the Senate ended its day, vowing to return early next week. But it was unclear whether House lawmakers would continue working their way through the dozens of bills to adjourn for the summer, or break for the weekend and return on Monday.

Exhausted Democratic House leaders waved off questions from anxious observers and lobbyists about when they’d be done.

“We worry about House business. We are still going to continue to work,” House Speaker William J. Murphy said through a spokesman.

The House’s small but steadfast Republican opposition, meanwhile, offered harsh words over the breakneck pace and lack of a schedule. When the day began, the House had 142 items on its agenda, with dozens more added as the hours passed.

“What you’re seeing now is passage of the bills that were previously held hostage by the speaker so he could corral the votes he needed to get the budget done,” House Minority Whip John Loughlin, R-Tiverton said as the sun set.

“… Now there is a very limited time to pay back all of those favors, so you’re seeing this tremendous crush of questionable legislation cramming out all at once. There is no reason why any of these bills couldn’t have been done in March, but for the fact that they were being held hostage by the speaker.”

The day revved into gear by mid-afternoon, with Senate lawmakers unexpectedly passing a bill that would create an education-funding formula for school districts in Rhode Island’s 39 cities and towns. The Ocean State is the only one in the nation that does not have what supporters call a “predictable” funding formula.

Funding-formula plans have kicked around the General Assembly for several years, only to lose steam long before the final nights of the session.

“We have procrastinated long enough,” bill sponsor Sen. Hanna Gallo, D-Warwick, said Friday.

Gallo’s proposal, backed by a host of stakeholders ranging from the state’s labor unions to the business-backed Rhode Island Public Expenditure Council, establishes a formula based on a complex equation that guarantees no community would lose money.

Supporters acknowledge that the provision would ratchet up the cost of the plan, which is why they included a clause stipulating that the legislation won’t take effect until the state experiences at least two consecutive years of revenue growth.

“It is an expensive proposal,” said Timothy Duffy, executive director of the Rhode Island Association of School Committees. “How the legislature is going to fund it with diminishing revenue will be an issue.”

But Friday night the plan appeared headed for a slow death on the House side, where Democratic leaders have said they’d prefer to establish such a formula when there is money to actually fund it.

Even Rep. Edith Ajello, D-Providence, who has sponsored her own funding formula, seemed skeptical. “We don’t have the money this year,” she said. “Nobody’s predicting an influx of money next year. In fact, the prediction is for a larger deficit next year. So my question is: when will we have money to fund this formula?”

In another unexpected move, the Senate passed a bill that would require the part-time reopening of the motor vehicles registry in Westerly, which has been closed since February because of state budget problems. The new budget includes $10,000 to reopen that branch. But the state Department of Administration believes it would cost at least $420,000 to revive it, citing a need to hire three full-time employees and get updated equipment.

On the House side, the action was slightly more frenzied, with bills voted in bundles over ice cream sandwiches and Finance Committee members huddling on a balcony outside the House lounge to curb pensions for a group of state judges who were left out of pension changes adopted in the state budget.

By late evening, tempers had flared, with Minority Whip Robert A. Watson demanding to know why no fans had been brought in to cool the sweltering chamber. Speaker Murphy quipped that it wasn’t hot enough. At least not yet.

Some members took the heat and the uneven pace of business in stride, removing their shoes or taking refuge by the windows in the lounge, occasionally missing votes in favor of a cool breeze.

Lobbyists awaiting the fate of their bills paled as the evening crawled on and the outcome of key proposals remained unclear. The Senate still needed to approve changes to the Twin River dog-racing bill, and the House had yet to take up several contentious proposals, including one that would assess private colleges and universities with a municipal impact fee and another that would give domestic partners the right to make funeral arrangements for their loved ones.

“It could be done better,” said John Marion, executive director of the government watchdog group Common Cause. “There are 142 bills before the House right now. The typical refrain here is ‘That’s always how it’s been done.’ I don’t think that’s an excuse.”

With reports from Katherine Gregg

cneedham@projo.com

The “big push” is on

Every year both chambers of the Rhode Island General Assembly suspend their rules allowing hearings and votes to occur on bills without 48 hours notice to the public. On Tuesday the “big push”, as the Senate Journal describes it, began. Common Cause is at the Assembly working on the initiatives we’ve been telling you about all year.

Open-Records Bill, with Major Change, Approved by House

By Karen Lee Ziner

Journal Staff Writer

PROVIDENCE — The House on Tuesday passed open-records legislation with a last-minute amendment that eliminated what supporters had called “a huge advance” — a requirement that initial police narrative reports on arrests be made public.

Jarred by that and two other unexpected amendments, some of those supporters said they will meet Wednesday to discuss their options.

“The changes that were made are very troubling and all the groups that have been working on this bill are going to sit down and discuss the ramifications of those amendments,” said Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, one of several advocacy groups that supported the legislation.

“But I’d emphasize that the attorney general has held for some time that the initial narrative reports are in fact a public record,” said Brown. “The House vote to the contrary today is a major step backward in the scope of the statute.”

Barbara Meagher, president of ACCESS/RI, said the language stipulating that initial police narratives are public record “is a key part of our bill. The public needs that information. It makes it tough when people who are making decisions about this are part of the government that the public needs information about. And they, in effect, make it look like they’re blocking some information about themselves. They need to be braver and let the public know more about what the government is doing.”

Meanwhile, Rep. Edith H. Ajello, D-Providence, prime sponsor of the bill (H 51360), asked that it not be sent immediately to the Senate for a vote. Ajello said the bill can still be amended as long as it remains on the House side. She said, “I’d love to bring it up again to make it whole.”

The 46-22 vote followed nearly two hours of steamy debate on a bill supporters had said would significantly widen access to public records. Until Tuesday, the House bill mirrored legislation the Senate passed unanimously last week that was sponsored by Sen. J. Michael Lenihan, D-East Greenwich.

The twin bills had taken two years for disparate parties — including advocacy groups and law enforcement — to hammer out and had the support of the Rhode Island Press Association, the RI ACLU, ACCESS/RI, Common Cause, and the state attorney general’s office. Rhode Island State Police legal counsel Lisa Holley said Tuesday that the department still has reservations, including the seven-day window for responding to records requests. “Seven days is huge for us,” Holley said. “It makes it over-burdensome for us.”

The House and Senate bills require that police release basic arrest information within 24 hours, including name, home address (provided it does not reveal the identity of a crime victim who is a minor); date of birth, gender and race; the charge or charges; the date, time and the name of the arresting officer. They shorten to 7 days from 10 days the time during which a public body must respond to a records request, and boost fines for public agencies that ignore the deadlines.

The legislation also makes it easier for the average person to obtain records by forbidding public employees to inquire who they are or why they want them. And, it makes public certain records that had not previously been considered public, including municipal pension records and records of payments received by employees as a result of termination or otherwise leaving public employment

“For all of us in this chamber who say we’re for open government, this bill is it,” said Rep. Michael J. Marcello, D-Scituate. “Though government works for people in Rhode Island, the reality is, some cities and towns — it’s very difficult to get information from them. They use every trick in the book — [including] intimidation,” he said. “In this, they cannot ask you why you are requesting it. This is really about transparency.”

Responding to Marcello, Rep. Arthur J. Corvese, D-North Providence, said, “I am for open government, just not for stupid government.”

Ajello took exception. “… I really resent my legislation being called stupid,” she said.

Corvese said, “If you took offense, I apologize. But I feel this strikes at the heart and purpose of government … to protect its people.” Corvese also said he has “a real problem with someone asking for information and not identifying who they are.”

House Minority Leader Robert A. Watson demanded, “Why didn’t we deal with this bill in March, rather than the day before” a scheduled vote on the state budget?

Before Tuesday’s vote, Scott Pickering, executive director of the Rhode Island Press Association, said the requirement that the police narrative report must be released as part of the initial arrest report would reflect a “huge advance,” and brings statewide consistency.

“The officer’s narrative is critical in understanding why police take people off the streets put them behind bars and charge them. Lacking that report — whether it’s the media or an average citizen or anyone from public — all you can get is the name, address and age” of an adult who has been arrested. “That gives you almost no understanding why and how police exercise one of government’s highest powers.”

kziner@projo.com

A (Partial) Victory for Sunshine

Tuesday June 23rd, the Rhode Island House voted on major changes to the Access to Public Records Act. Unfortunately, two amendments stripped important provisions from the Act. You can read about the history of the bill here, the Providence Journal’s editorial endorsement, and an example of how the law helps everyday citizens. Ask your representative to restore the changes to the act by contacting them, and ask Governor Carcieri not to veto the bill this year, by contacting him here.

Let Daylight Shine on Business of Governing

By: Ed Fitzpatrick

When Newport real estate agent Jack McVicker is trying to sell a house, he routinely asks for outstanding tax bills for that property, and Newport, Middletown and Portsmouth officials routinely provide that information, no questions asked.

But a couple of months ago, he was listing a property in West Warwick, and when he drove up to get the tax bill, a clerk asked: Who are you? He replied that it shouldn’t matter since he was requesting a public record. He said the clerk then told him he couldn’t have the information. So he explained what he was doing. But the clerk said the property owner, who’d hired him to sell the house, would have to contact her.

McVicker said he eventually received the information after filing a formal request under the state Access to Public Records Act. But the experience infuriated him and he suspects he only received the paperwork because he “raised a stink.” He said his experience highlights the need to ensure that records access doesn’t vary by town, and it highlights the need for better training.

In short, his experience highlights the need for a pending bill that would strengthen the open-records law. The Senate passed it last week, and the House is to vote on it Tuesday.

The bill would prohibit public officials from requiring, “as a condition of fulfilling a public records request, that a person or entity provide a reason for the request or provide personally identifiable information.” And it would require training for all state and municipal officials who have authority to grant or deny records requests.

Sen. J. Michael Lenihan, D-East Greenwich, sponsored the Senate bill and has been working on this section of law for a decade. He clearly understands the big picture, saying, “If the public doesn’t have access to public records, they don’t have access to a portion of their democracy.”

He notes the bill is the result of intensive negotiations by groups such as the Rhode Island Press Association, Common Cause Rhode Island, ACCESS/RI, the American Civil Liberties Union and Attorney General Patrick C. Lynch’s office.

Lynch spokesman Michael J. Healey said, “It’s a classic compromise bill. Nobody got everything they wanted but hopefully everyone got something in there they really needed.”

Lynch recognizes the need to update and upgrade the records law, and pushed for making municipal pension records public, Healey said. But Lynch had concerns about crime victims and witnesses and opposed releasing the location of arrests if doing so would identify a victim’s address.

This year’s legislation would not require the police to release the location of arrests. I think that’s a basic fact that should be public. But the bill would require the police to release, within 24 hours, the name, home address and date of birth of an arrested adult, the charge and the date and time of the arrest.

It also would make clear that the “initial narrative report” of an arrest is a public document. Rhode Island Press Association president Scott Pickering said the narrative report is crucial because “it helps you understand why the police used one of their highest powers — pulling someone off the street, putting them behind bars and charging them with a crime. It’s vital not just for the media but for the public to know what happened when the police pull up next door.”

Healey said Governor Carcieri was “on solid ground” in vetoing a records-access bill last year because it “didn’t protect witnesses and crime victims as well as it should.” But, he said, “The difference between last year’s bill and this year’s is night and day.”

At the end of the day, the governor and lawmakers need to let more daylight in to illuminate the workings of government.

efitzpat@projo.com

Battle Over Coastal Oversight Panel Leaves It Rudderless

By Peter B. Lord

Journal Environment Writer

PROVIDENCE — Save the Bay and Governor Carcieri say they hope the House of Representatives passes a Senate bill in the waning days of the session that would let the governor appoint more members to the shorthanded Coastal Resources Management Council. But the House is looking at a different bill — and that could cause delays, raising the possibility that there will be no help for the critical coastal agency this year.

Carcieri and the state’s largest environmental group support the bill the Senate passed unanimously in May. The bill largely leaves the coastal council as it is, but changes somewhat the size and makeup of the council — comprising political appointees — that votes on critical coastal permit applications.

The Senate has passed the bill several times, but it has repeatedly died in the House, where leaders insisted they have a constitutional right to appoint at least some council members.

The state Supreme Court responded to the House contentions with an opinion last December that came down strongly in favor of the governor’s right to make appointments, and therefore control the council, which wields vast power over coastal activities in Rhode Island. That decision prompted many to hope that the House would finally support the Senate bill.

But the House has not even scheduled a hearing on it.

Instead, the House has scheduled a hearing for Thursday on a new bill sponsored by Rep. Eileen Naughton, D-Warwick. Naughton, who has served on the coastal council and has a strong interest in ocean issues, drafted a bill that does away with the appointed board altogether and makes it another department of the state, similar to the Department of Environmental Management.

“I think having a council presents a clear problem, a conversion of powers,” says Naughton. “My bill has clear areas of power: permitting is an executive power.”

Common Cause has spoken out against the Senate bill, because it restricts the communities from which the governor could make appointments to the council. The organization’s executive director, John Marion said it will review Naughton’s bill Monday night, but it does appear to him to be in keeping with separation of powers and the Supreme Court opinion.

Marion offered a third option last week: why doesn’t the governor appoint some new council members now, while the Senate is still in session and has time to provide its advice and consent.

“We don’t even need legislation, but we need part of the legislature to act,” Marion said in an e-mail.

Save the Bay argues that Naughton’s bill has arrived too late and provided too little time for review. But Naughton says she had no opportunity to review the Senate bill.

Save the Bay director Jonathan Stone, in a message to House leaders, says the time to act is now: “CRMC is operating under questionable authority and at half strength nearly five years after passage of the separation of powers amendment and six months after the Supreme Court made it very clear that CRMC is subject to the amendment. Critical decisions are being postponed and meetings are being regularly canceled by CRMC.”

plord@projo.com

House Delays Action On New Public-Records Access Bill

By Karen Lee Ziner

Journal Staff Writer

Rep. Edith Ajello, D-Providence, has sponsored legislation that would strengthen access to public records.

The Providence Journal / Connie Grosch

PROVIDENCE –– The House has postponed to Tuesday a vote on legislation that supporters say would strengthen the state Access to Public Records Act. Sponsor Rep. Edith Ajello, D-Providence, agreed to give legislators more time to read a redrawn, substitute bill introduced prior to Thursday’s scheduled vote.

Ajello’s bill now mirrors legislation the Senate passed unanimously on Wednesday. It stiffens fines for police departments and other public agencies that fail to meet deadlines, and eases the process for the “average Joe” unfamiliar with records requests.

Both Ajello’s bill and the one sponsored by Sen. J. Michael Lenihan, D-East Greenwich, are supported by the Rhode Island Press Association, the nonprofit freedom-of-information coalition ACCESS/RI, Common Cause Rhode Island, the Rhode Island Affiliate of the American Civil Liberties Union and the state attorney general’s office .

Before the postponement, Ajello said she believed that Governor Carcieri will support the legislation rather than veto it as he did last year.

But Carcieri’s spokeswoman, Amy Kempe, said Thursday, “I know law enforcement still has serious issues with the legislation, and we will take that under consideration when the governor reviews the bill. But I know it’s different legislation than last year, so I can’t go solely on what he did last year.”

The legislation, in part:

•Shortens the time in which a public body must respond to a records request from 10 business days to 7.

•Increases the fine from $1,000 to $5,000 for “a knowing and willful violation” of the open-records law.

•Makes public certain records that had not previously been considered public, including municipal pension records and records of payments received by employees as a result of termination or otherwise leaving public employment

•Specifies that certain portions of police reports are deemed public and must be released within 24 hours — including the initial narrative about an arrested adult; the name, home address (provided it does not reveal the identity of a crime victim who is a minor), date of birth, gender and race; the charge or charges; the date, time and location of the arrest; and the name of the arresting officer.

It formalizes training and certification requirements for all state and municipal officers and employees of public bodies who handle records requests, and requires every public body to designate a public-records officer; and explain how and where to make public records requests.

Steven Brown, executive director of the ACLU’s local affiliate, said passage of the legislation “will put Rhode Island more in line with the open record laws of other New England states,” particularly in terms of response times for releasing records.

John Marion, executive director of Common Cause, said that while police records have been a major focus, “there are a lot of things in this bill that don’t apply to police records that are huge steps forward for public-records law.”

He said, “In particular, it prohibits any public body from demanding information about the person requesting the public record. Historically that has been a real problem [when officials ask] ‘Why do you want the record?’ ‘Who are you?’ — which is a way of intimidating the person trying to request the record.

“It’s also about the average Joe who wants to get something from his town clerk and is scared because they’re walking into the town clerk’s office — they’re not a lawyer, not a reporter, they’re just a citizen and want a public record. But they might not know it’s a public record and might not know how to request one.”

kziner@projo.com

Editorial: Keep Arrest Records Open

There has been a quiet effort by some in the law-enforcement community this year to weaken Rhode Island’s Access to Public Records Act as it pertains to official police narrative reports of arrests.

If such a pushback occurs, the public won’t be able to learn crucial information about how the police do their jobs and how parts of the state criminal code are being applied. Police activities are, after all, part of government and the public deserves to know what its government is doing. And it is particularly important for the public to have oversight of police, who are given power to use deadly force and deprive citizens of liberty (at least temporarily).

One dubious “improvement” this year would amend the law regarding the public’s right to read the narrative of arrests of adults. (Records of arrests involving minors are treated a bit differently, which is appropriate.) A Senate bill says that “specific language contained within these documents may be exempt as set forth in this chapter.” This effort to limit information has extended to allowing the removal of information about the locations of arrests and delaying the release of the names of officers involved.

At the very least, such a pushback could badly delay access to this public information. At worst, it could indefinitely prevent it from being made public.

Legislators should resist this.

Let’s Improve Access to the Polls

As the General Assembly session enters the final weeks, it’s not too late for the legislature to put the interest of the people first. In recent weeks the House has voted to impose a photo identification requirement on voters, and both chambers have supported closing the polls earlier Election Day. Now is the time to tell the General Assembly that the nearly half-million Rhode Islanders who voted last year deserve more, and not less, access to the polls.

The first order of business is passing the bill that gives 16 and 17 year-olds the ability to preregister. After being vetoed numerous times, this bill deserves to be passed again in time so that any veto can be overridden. Likewise the bill to provide a direct election in cases of U.S. Senate vacancies should be passed. Voters, not politicians, should decide who represents us.

It is not for lack of ideas that the Assembly is not making it easier for people to cast their ballots. The Assembly has before it two bills that would make it easier for citizens to vote. The first allows citizens who cannot be bound by the historical anachronism of the first Tuesday after the first Monday in November, to vote during business hours at town halls the week prior to the election. The second bill would make it easier for voters to receive a mail ballot if they cannot vote on Election Day. Where are these bills in the legislative process? They are stuck in committee, with the early voting bill not even receiving a hearing as the final weeks of the session.

Carcieri Criticized for Interviewing Some Contenders for District Court Chief Judgeship before Nominating Commission Selections Were Made

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — The Judicial Nominating Commission on Wednesday selected five finalists for Governor Carcieri to consider for chief judge of the District Court, the post held by the late Albert E. DeRobbio Sr. But the governor began interviewing at least some candidates before the commission even took its vote.

“It’s true, and it’s out of an economy of time,” Carcieri’s spokeswoman, Amy Kempe, said. The governor wanted, she said, to get a jump on the process, so he could forward a nominee to the Senate before the close of the session.

But news of the interviews drew concern from a member of the nominating panel and from the government watchdog group Common Cause of Rhode Island.

“I was surprised …,” commission member D. Faye Sanders said of learning, hours before the vote, that Carcieri had already interviewed the acting chief judge, Michael A. Higgins, and District Court Judge Stephen P. Erickson. “I don’t know the rationale.”

“I believe the process should be there for everyone. Those who weren’t sitting judges, how does that make them feel?” she said.

Kempe refused to disclose which of the seven people seeking the post the governor had met with, saying he only “intended to meet with as many as humanly possible.” She would not say whether the governor had followed a similar process with any of the six other vacancies on the courts.

Rhode Islanders voted in 1994 to create the independent, nonpartisan Judicial Nominating Commission to remove politics from judicial selection, after two chief justices resigned in scandal. The nine-member commission was to submit a list of three to five candidates for the governor’s consideration, based on merit.

Seven vied for DeRobbio’s post: Higgins; District Court Judges Elaine T. Bucci, Stephen P. Erickson and Jeanne E. LaFazia; the governor’s chief of staff, Brian P. Stern; Board of Elections executive director Robert Kando and John E. DeCubellis Jr., legal counsel for National Education Rhode Island. On Wednesday, the commission voted to forward to the governor the names of the four sitting judges and Stern. The position has a lifetime tenure and a base salary of $150,934.

DeCubellis said he had an “informal” interview with the governor May 19. It was unclear, he said, if the meeting was about the chief judge post or a District Court seat he previously applied for. He did not view it as problematic because the meeting obviously didn’t influence the list generated by the nominating panel, he said.

Kando said he was not approached by the governor and speculated that it could be deduced whom the panel would choose based on past performance.

LaFazia and Bucci said they were already scheduled, prior to the panel’s Wednesday vote, to be interviewed by the governor in the coming week. Bucci said she was told the interview was being arranged early due to timing. “It’s not the way it’s usually done, but I accepted it,” Bucci said. LaFazia declined to discuss the meeting further.

Erickson would not confirm being interviewed. Calling it an internal process, Erickson said, “That’s not something I’m comfortable discussing.” Higgins did not return a phone call seeking comment.

Sanders credited commission Chairman Stephen J. Carlotti with working to make the judicial selection process “fair, across-the-board and transparent.”

“I think we should do everything to maintain the credibility,” she said.

Carlotti said he, too, learned Thursday about the governor’s early interviews. “It’s not my position to comment of what the governor decides,” he said.

Common Cause executive director John Marion dismissed the rationale given by the governor’s spokeswoman.

“For the governor to be seen acting out of order for that position is highly problematic,” Marion said, particularly given that Stern, the governor’s chief of staff, is vying for the post.

“Any attempt to say they need to speed up their process at the 11th hour is ironic given that they’ve been sitting on lists for 12 months,” he said.

The nominating panel forwarded finalists for a Superior Court seat and a District Court seat last July. Though the law requires him to pick a nominee within 21 days of receiving a list, the governor has not filled either vacancy. The governor’s office has said it views that time frame as advisory.

kmulvane@projo.com

Senate Panel to Consider Extending Law that Expanded Judicial Pool

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — The Senate Judiciary Committee on Thursday will hear a bill that would extend by one year the governor’s ability to select state judicial nominees from lists of finalists created over the past five years.

First passed in 2007, the legislation is backed by Governor Carcieri and opposed by the government watchdog group Common Cause Rhode Island. Before its enactment, the governor had to choose a nominee from a list of three to five finalists selected by the Judicial Nominating Commission — only.

Under the 2007 law, due to expire June 30, the governor can choose from lists of finalists generated by the commission for various court seats over the past five years. The law does not pertain to chief judge positions or the Supreme Court. The bill would extend the law to June 30, 2010.

Without the extension, the governor would not be allowed “to reach into a pool of already well-qualified vetted individuals,” Carcieri’s spokeswoman Amy Kempe said. “It broadens the pool.”

But Common Cause opposes the bill. “We think it goes against best practices of merit selection,” said John Marion, Common Cause executive director.

Marion added: “If this is a good way to do it, why not make it permanent?” Extending the measure year-to-year indicates it’s not the best way to select judges, he said.

Kempe said the governor would not be “uncomfortable” with changing the law permanently, but that the General Assembly seemed more comfortable addressing the issue on a year-to-year basis. She referred questions about the one-year extension to the bill’s Senate sponsor, Sen. Leo Blais, R-Coventry, who was out of town.

Rep. Brian C. Newberry, R-North Smithfield, said he submitted the House version of the bill as written at the governor’s request. He speculated that the governor’s office believed it could gain more support if it was extended annually.

“I would have put in a permanent change,” Newberry said. It is aggravating, he said, for judicial candidates to be put through the rigorous selection process year after year. The House bill has been held for further study, but could be revived, he said.

Common Cause dismisses arguments about the process being onerous for candidates for the lifetime judicial posts. “It’s a small price to pay considering what the reward is.”

There are currently seven vacancies on the state judicial bench. Under the law in effect until June 30, Carcieri has 15 candidates to choose from for the District Court opening created by the retirement of Judge Walter Gorman last March, Kempe said. The governor has a pool of 9 to choose from to replace Superior Court Judge Vincent A. Ragosta, who retired last May, and 10 to select from to fill Judge Howard I. Lipsey’s post, she said.

And the Family Court pool grew Wednesday after the Judicial Nominating Commission submitted finalists for the opening created by the death of Family Court Judge Gilbert T. Rocha.

kmulvane@projo.com