Is Governor Carcieri breaking the law?

Woonsocket Call

Politics as Usual by Jim Baron

Is Gov. Donald Carcieri flagrantly violating state law by not sending the cities and towns the third quarter car tax reimbursements that were due a week ago today?

His spokeswoman, Amy Kempe won’t say.
Really.
I asked last Friday and Kempe refused to say whether the governor’s actions constituted a violation of law.
All she would say is that the administration believes that withholding the $30-some million in payments from the cash-starved municipalities is “the right course of action” and “in the best interest of the state.”
But as for whether it is legal, Kempe would say only “that is a determination for the courts to make.” I guess that is true, to a point. When a guy with a mask and a pistol holds up a bank, whether that is illegal or not is technically a determination for the court to make, but I think we all know pretty much how that is going to turn out.
But it looks like the court is going to have to make a decision on this one. Woonsocket Mayor Leo Fontaine filed suit in Superior Court on Friday to force the governor to pony up the money and the RI League of Cities and Towns will probably say “Amen” with a court action of its own this week.
The first thing I noticed in my phone conversation with the press secretary was that I didn’t get an answer of “Of course the governor didn’t think it was illegal or he wouldn’t have done it.” I even fished for that answer and didn’t get it. I asked Kempe “well if the governor thought it was illegal, he wouldn’t have done it would he?” She still didn’t budge and would only say that the administration thought it was “the best course of action.” She must have used that phrase 10 times in a seven minute conversation.
Back in the Lincoln Almond administration, the General Assembly took away the governor’s power to not spend money that was appropriated for a particular purpose.
Fontaine’s lawsuit — which he signed in red ink because “That's all anyone of us will have left if things are allowed to continue”; the man understands political theater — says that the governor therefore has a duty to carry out the budget as passed by the legislature.
Kempe said the governor is hoping to work with the legislature to get it to decide as quickly as possible whether it is going to pass the supplemental budget that contains the cuts.
Good luck with that. The General Assembly has a vacation coming next week and has no intention of voting on a supplemental budget before that. That means it will be Feb. 23 before even a committee vote is taken on the supplemental budget. So for all intents and purposes it will be March before cities and towns know for sure whether they are going to lose $67 million from a budget that expires June 30.
The legislature has only been in session for six weeks in the midst of the most severe budget crisis this state has seen since the credit union crisis, has passed zero legislation of any significance, and now needs to take a week off for vacation before making a decision of make-or-break importance to all 30 cities and towns? That is beyond chutzpah; it is off-the-scale arrogance.

Amendment may be coming
It looks like we are going to get a Bill Irons Amendment to the RI Constitution
Such an amendment was called for in this space more than a year ago, when Irons was still wrangling with the Ethics Commission over the Constitution’s speech in debate clause. I renewed that call after Irons prevailed in the state Supreme Court last year and now it looks like it may be happening.
The amendment — which would bring the behavior of General Assembly members under the jurisdiction of the Ethics Commission, the speech in debate clause notwithstanding — was drafted by Common Cause and Operation Clean Government (OCG). They gave it to House Majority Leader Gordon Fox to introduce. The legislation to put the proposed amendment on the ballot may have to be amended itself, because it does not specify the exact language of the referendum question to be put before voters for them to accept or reject. But that is a housekeeping detail that can be left for another time.
Fox is at once a natural and a curious choice to submit this particular amendment. Natural because he is the powerful Majority Leader of the House who, as soon as this week, could get nominated for Speaker by the Democratic caucus if Speaker William Murphy makes an abrupt exit. If anyone has the oomph to get such a provision on the ballot, it is Fox.
It seems lately that every time there is a new Speaker of the House, there is a major step forward in government reform. When Murphy succeeded John Harwood, a separation of powers amendment was finally put before voters after a decade of reformers’ efforts to do so. Now, with Fox apparently preparing to succeed Murphy, General Assembly members will once again be subject to being called on the carpet by the Ethics Commission.
That, too, was predicted right here. In the July 6, 2009 Politics as Usual it said:
“House Speaker William Murphy has been saying for years that he would likely serve eight years as speaker, then move on. If he holds to that — and yes, that is a BIG if — that means next year would be his last. When politicians see the end of their term coming, they tend to look for a legacy.
Closing the ethics loophole would be a good legacy for Murphy. Murphy took the speakership in 2003 and soon after the long-stalled separation of powers amendment finally made it to the ballot. If Murphy goes out by closing the Irons loophole, he can go down in Rhode Island history as Mr. Ethics.”
OK, Mr. Ethics might have been a bit carried away, but I’m claiming the prediction nonetheless. By the way, Murphy had earlier told me he would stay on as Speaker “at least through the budget,” but now he may be bailing in the second week of February. The general laws say that if a General Assembly seat becomes vacant after the first Monday in February of an election year, there is no special election to replace him or her, the seat stays empty. It’s not clear whether Murphy would remain in the House after stepping down as Speaker, but that almost never works — it is too awkward for everyone involved.
Fox is a curious choice because at one time he had been the recipient of the biggest fine ever meted out by the Ethics Commission — before Sen. John Celona came along and really rang the bell — on a complaint filed by OCG, in fact.
So much for the House, but a bill to put the amendment on the ballot would also have to pass the Senate (the governor has no say in this; the constitution does not give him a veto over proposed amendments because the people get to vote on them). That could be another story altogether.
Sen. J. Michael Lenihan will be introducing an identical measure in the Senate. That could be a good and a bad thing. Good because Lenihan is a reliable reformer. If he sponsors a bill, you can trust there is a good government reason behind it.
It could be a bad thing because, possibly for the very reasons cited above, not everything Lenihan puts his name on passes, or even comes up for a vote. So be prepared for this to not see the light of day in the Senate.
One idea put forward is for the Senate to — don’t laugh, now — form a committee to police the ethics of its own members. I said don’t laugh! But I guess you couldn’t resist. I still give a sardonic chuckle at the thought myself.
But with Fox pushing for the amendment in the House, that might give it the boost it needs to clear the Senate as well.
If the amendment does get on the ballot, I will be surprised — and disappointed — if it doesn’t get approved by at least 85 percent of the voters. For the life of me, I can’t think of more than 113 people who might vote against it.