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