Common Cause Briefs in Ethics Comm.’s Appeal

Common Cause Rhode Island has issued friend of the court briefs in Irons vs. Rhode Island Ethics Commission. Click below to read what we have to say on these important issues to all Rhode Islanders.

Brief on Speech in Debate

Brief on Jury Trial

Reply Brief

Is ‘R.I. Ethics’ an Oxymoron?

By: EDWARD ACHORN

SHORTLY AFTER I arrived at The Journal, a sardonic editor informed me with a straight face that the phrase “Rhode Island ethics” was an oxymoron. I had a good laugh, but it seems he may have been prophetic.

Because, in October, Superior Court Judge Francis Darigan pulled the rug out from under the state’s system for enforcing ethics in government. He dismissed charges that former Senate President William Irons had acted in the interests of a business client, finding that the “speech-in-debate” clause of the state constitution barred the state Ethics Commission from questioning or investigating lawmakers on the basis of their legislative acts.

And now the American Civil Liberties Union has weighed in, agreeing with the ruling and arguing that “fundamental rights and liberties” in the state constitution give Rhode Island legislators freedom from the irritating restraints on their conduct imposed by the Ethics Commission.

The Rhode Island Supreme Court is set to hear arguments May 13.

I’m no constitutional lawyer, and I’ve always had qualms about a quasi-judicial body operating (as the Ethics Commission does) in a murky region outside the executive, legislative or judicial branches, but this argument certainly seems bizarre on its face.

After all, members of our national legislature, Congress, have similar speech protections yet are hemmed in by ethics restrictions. They should have maximum protection to do their jobs representing the people, of course. It is necessary to shield them from attack by powerful interests or other branches of government for exerting their will as representatives. On the other hand, the U.S. Supreme Court has ruled that this clause does not give congressmen the right to, say, accept bribes for their string-pulling or votes.

As for the notion that the Ethics Commission violates the constitution: Rhode Island voters jumped through the appropriate hoops in 1986, when, sickened by government corruption, they amended the constitution to create the Ethics Commission. Such reform is always a Herculean effort, a long hard pull against powerful reactionary forces that are heavily invested in corruption (legal and otherwise) at the State House. The Darigan ruling seems to disenfranchise those voters and disregard the constitution as they amended it, something that in itself is ominous.

The Rhode Island Constitution (Article 3, Section 8) states: “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 conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. 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. The ethics commission shall have the authority to investigate violations of the code of ethics 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.”

If all elected officials are included under the constitution, that by definition includes members of the General Assembly.

But here’s the rub: The constitution also states (Article 6, Section 5): “For any speech in debate in either house, no member shall be questioned in any other place.” Does this clause supersede the voters’ will in the other section? And must it be interpreted so broadly that “speech in debate” includes the right to sell one’s office for private gain and evade the state’s ethics code, as administered by the Ethics Commission?

Were such an interpretation to stand, ethical judgments in recent years — including those against former House Majority Leader Gerald Martineau, House Majority Leader Gordon Fox, former Sen. John Celona and former Senate President Joseph Montalbano — could not have been pursued. That might please political insiders, who would be blessed with greater freedom to turn public office into income opportunities. Whether it would serve the public interest is another matter.

That is why Common Cause Rhode Island, the League of Women Voters of Rhode Island and Operation Clean Government have all filed briefs supporting the commission’s challenge of Judge Darigan’s ruling.

Of course, an ethics commission is not the only check on corruption. A free and vigorous press is also crucial, as are competitive elections. When a politician faces an opponent, he or she is much more inclined to serve the general good rather than special interests and selfish financial aims. That is because such conduct can become a campaign issue.

For that reason, the public should be pressing its elected officials to get rid of the “master lever” on the ballot, a corrupt legacy of machine politics. That ballot option gives a majority-party candidate a huge built-in advantage against a minority-party or independent candidate. Such unfair elections not only help deny voters a choice on the ballot, but also deprive them of incumbents who care very much about what the public thinks.

In the meantime, citizens concerned about ethics in Rhode Island government will be waiting nervously to find out whether the Supreme Court goes along with Judge Darigan’s intriguing interpretation of the constitution.

Edward Achorn is The Journal’s deputy editorial- pages editor ( eachorn@projo.com).

Sides Weigh in on Irons Case

Sen. William V. Irons walks out of his office after announcing his departure from the General Assembly in December 2003.

The Providence Journal / BOB THAYER

When I joined The Journal’s State House bureau in 2000, one of my first assignments involved listening to then-Senate President William V. Irons offer advice to newly elected state legislators.

“You will not win reelection to this chamber by what you do in this building,” Irons told them. “It’s going to come as a shock to you freshmen,” he said, but the truth is most people don’t pay attention to the votes and stances legislators take on most issues.

“Please don’t misunderstand,” Irons said. “I’m not saying do anything you want up here and forget what they say.” The point, he said, is that legislators should not forget about the people who elected them. “Don’t forget your Little League associations,” he said. “Don’t forget your Lions Clubs.”

That advice seemed a bit cynical, but it contained a lot of truth. The average Rhode Islander doesn’t have time to follow the votes taken by the Senate Corporations Committee, for instance. And the average voter didn’t notice when Irons, as chairman of that committee, opposed a controversial pharmacy-choice bill that CVS — the pharmacy chain he’d sold insurance to — wanted killed.

In addressing the rookie lawmakers, Irons was no doubt emphasizing the importance of constituent service. But to me, his comments drove home the importance of watchdogs — of the reporters and groups that keep an eye on obscure committee votes and that probe possible conflicts of interest.

One of those watchdogs is the state Ethics Commission, which is now locked in a high-stakes legal battle with Irons. In the weeks ahead, the state Supreme Court will be weighing whether to uphold a ruling that says the Ethics Commission can’t prosecute legislators based on their votes and other legislative activities. The Ethics Commission says that if that ruling stands, it could cripple its ability to police unethical behavior in the General Assembly.

Irons, an insurance salesman from East Providence, abruptly resigned in December 2003 after two decades in the Senate. The Journal later disclosed that Irons had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross health-insurance policy covering CVS workers in Rhode Island. The Ethics Commission found probable cause to believe Irons broke the ethics code by using his public office to obtain financial gain for his business associate, CVS.

But Irons’ lawyer went to Superior Court, arguing that the state Constitution’s “speech-in-debate” clause provides him with legislative immunity from such prosecution. Ethics Commission lawyers contended that voters “carved out a narrow exception to legislative immunity” when they amended the state Constitution in 1986 to create the Ethics Commission.

But in October 2008, Superior Court Judge Francis J. Darigan Jr. ruled in Irons’ favor, saying that if the drafters of a 1986 ethics amendment intended to repeal or dilute the speech-in-debate clause, “they could have and should have made that intention explicit.”

The Supreme Court will hear arguments in May. And in the meantime, the American Civil Liberties Union, Common Cause Rhode Island, the League of Women Voters of Rhode Island, and Operation Clean Government are adding their voices to the debate, filing legal briefs to go along with those filed by Irons and the Ethics Commission. The documents detail the complexity of the case and highlight its importance.

In the Ethics Commission brief, lawyers Jason Gramitt and Katherine D’Arezzo say Darigan’s ruling “sets the state of Rhode Island back 22 years and, more importantly, disenfranchises” the voters who overwhelmingly approved the 1986 ethics amendment to restore the public’s trust in government.

They argue that the Supreme Court has previously determined that “the Ethics Commission’s unique constitutional mandate and structure permit narrow intrusions into legislative areas traditionally protected by separation-of-power principles.”

Ethics Commission lawyers cite a 1992 Supreme Court advisory opinion that said the 1986 ethics amendment modified, by implication, another section of the state Constitution. (The opinion dealt with whether the Ethics Commission could add new prohibitions to the ethics code without first seeking General Assembly approval.)

But Irons’ lawyers say the issue presented in this case “is in no way controlled by” the Supreme Court’s 1992 advisory opinion.

“Although the delegates drafted the ethics amendments to establish an independent body, they did so without a repeal (and, in fact, with a re-adoption of) the speech-in-debate clause,” lawyers John A. Tarantino, Patricia K. Rocha and Victoria M. Almeida say. “Consequently, the Ethics Commission is empowered to investigate actions of legislators performed in a political, not legislative capacity.”

Irons’ lawyers cite a 1984 Supreme Court ruling, in Holmes v. Farmer, that said, “Legislators should not be questioned by any other branch of government for their acts in carrying out their legislative duties.”

The Holmes case involved an appeal by a former state Republican Party chairman who wanted to challenge the constitutionality of legislative redistricting. The Supreme Court said the speech-in-debate clause protected lawmakers from being questioned in that lawsuit.

But the Ethics Commission notes the Holmes case involved a suit filed by a private party rather than the Ethics Commission, and the case was decided before the 1986 ethics amendment.

A legal brief filed on behalf of Common Cause and the League of Women Voters addresses many of the same issues while also focusing on historical context.

In that brief, lawyer Thomas R. Bender says the state’s “speech-in-debate” clause is modeled after the federal “speech or debate” clause, which has “taproots in the Parliamentary struggles” of 16th- and 17th-century England where “successive monarchs utilized the criminal and civil law to suppress and intimidate” legislators critical of the king.

Bender says the “legislative independence” provided by the speech or debate clause “is, however, intimately linked with the legislative responsibility to internally discipline its members.” And in Rhode Island, when legislators repeatedly failed to police their own misconduct, voters decided that legislative independence “had to give way in small measure to the public’s interest in, and confidence in, legislative integrity.”

Bender quotes the Supreme Court’s ruling as saying that prior to the 1986 ethics amendment, “widespread breaches of trust, cronyism, impropriety and other violations of ethical standards decimated the public’s trust in government.” He says the 1986 ethics amendment shifted the legislative power regarding ethics away from the General Assembly, placing it in the hands of an “independent, nonpartisan commission with the power to ‘question’ core legislative activities.”

In Operation Clean Government’s legal brief, lawyer Thomas More Dickinson emphasizes that the 1986 ethics amendment says “all elected and appointed officials” shall be subject to the ethics code. And, he says, “To hold an entire class of elected officials — within an extremely powerful branch of our state government — exempt from enforcement of the code is to break faith with convention delegates who wrote the amendments and the voters who heartily approved them.”

I have no doubt about what the framers and the voters intended to do in 1986. And I believe Rhode Island needs an Ethics Commission that has the power to police legislative activities for conflicts of interest.

But I do have doubts about whether the framers and the voters who passed the 1986 ethics amendment fully succeeded in doing what they intended to do. I have doubts about whether it was enough to say the ethics amendment applies to all elected officials, and I wonder if the amendment should have spelled out that it overrides legislative immunity. Those doubts are stoked by the legal brief filed by the ACLU’s Rhode Island Affiliate.

In that brief, lawyers Mark W. Freel and Jon M. Anderson say the ethics amendment and the speech-in-debate clause are not in direct conflict, and “even if they were, constitutional guarantees of civil liberties cannot, should not and must not be repealed or limited by implication.”

Stay tuned as the debate continues before the Supreme Court on May 13.

When the newly elected legislators gathered in December 2000, Irons no doubt provided some practical suggestions. But I think the better advice came from then-Gov. Lincoln C. Almond, a former U.S. Attorney who began and ended his remarks with an admonition about integrity.

“There’s a lot of cynicism out there,” said Almond, who chose to address the lawmakers from the Senate floor rather than the elevated podium favored by other speakers. “But we should all show leadership with respect to the integrity of state government.” High ethical standards, he suggested, are key to giving citizens a “strong degree of confidence” in government.

If all of the state’s elected officials followed that advice, we wouldn’t need an Ethics Commission in the first place.

efitzpat@projo.com

BOE Supports Removing the Master Lever

The body charged with “the governance and conduct of elections” in Rhode Island has voted to support efforts to remove the straight party master lever from the ballot. On Wednesday, April 22nd, the Rhode Island Board of Elections voted 3 to 1 to support the bi-partisan movement to eliminate the master lever.

“The Board of Elections vote does not mean the straight party master lever is removed from the ballot,” says John Marion of the government reform group Common Cause, a member of the Make Every Vote Count coalition, “but their custodial role over elections in Rhode Island means their approval carries great weight.” Only the General Assembly can remove the straight party lever and currently there are two bills to do so, H 5318 and S 80, stalled in committees at the Statehouse.

“The straight party master lever is problematic for many reasons,” says activist Margaret Kane, “it does not work well with our current optical scan system.” This especially affects elections at the local level. In local non-partisan elections (16 RI Communities), a large undervote is due to straight party votes that ignore these races. And in instances in local partisan elections, the straight party vote in any local race with more than one position, is deleted without the voters’ knowledge, when voters make additional marks on the ballot in that local race.

Group Raps Governor for Judge Delay

The deadline expired earlier this week

Updated: Thursday, 23 Apr 2009, 7:58 AM EDT
Published : Thursday, 23 Apr 2009, 7:58 AM EDT

PROVIDENCE, R.I. (AP) - A good government group is criticizing Rhode Island Gov. Don Carcieri for a delay in nominating a new chief justice to the state Supreme Court.

Under state law, the governor must fill judicial vacancies within 21 days of receiving a list of finalists from the Judicial Nominating Commission.

Carcieri’s nominee must be confirmed by the General Assembly.

That deadline expired earlier this week. Carcieri’s spokeswoman has said the governor doesn’t view the deadline as mandatory and wants to take his time in making a pick since judges have lifetime appointments.

But the group Common Cause said in a statement Wednesday that the governor is flouting the law, and that the judiciary needs to be fully staffed. The group says the law isn’t advisory.

Common Cause Urges Governor to Choose Judges

Wednesday, April 22nd marks the 22nd day since the Judicial Nominating Commission (JNC) sent a list of finalists to Governor Carcieri for the position of Chief Justice of the Rhode Island Supreme Court. The law creating the JNC (§ 8-16.1-5) clearly states “(b) The governor shall fill any such vacancy within twenty-one (21) days of the public submission by the commission.” Common Cause Rhode Island asks; where is our new Chief Justice?

“The proper administration of justice relies on a fully staffed judiciary,” says John Marion, executive director of Common Cause Rhode Island, “and by ignoring the law concerning judicial vacancies, the Governor is preventing that from happening.” Besides the current vacancy for the Chief Justice slot, there are two other vacancies for which the JNC provided lists to the Governor, in 2008, and that are still unfilled. Common Cause Rhode Island urges Governor Carcieri to fill all judicial vacancies in a timely manner and in accordance with the law.

ACLU backs ex-Sen. Irons in Ethics Case

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — The Rhode Island Affiliate of the American Civil Liberties Union is backing former Senate President William V. Irons in his effort to persuade the state’s high court to let stand a ruling that the state Constitution protects lawmakers from ethics probes into their legislative acts.

The ACLU on Monday filed a friend-of-the-court brief with the Supreme Court supporting Irons’ position that the Constitution’s “speech in debate” clause prevents the Ethics Commission from questioning or investigating lawmakers based on their legislative activity. The brief challenges the commission’s arguments that a constitutional amendment, passed by voters in 1986 in response to cronyism and corruption, empowered it to investigate ethics complaints against lawmakers by trumping the clause.

The ACLU wrote that the commission’s argument that the amendment implicitly limits the clause is “a launch down a slippery slope of eroding the civil liberties of all Rhode Islanders who come before the Ethics Commission, not just Mr. Irons.”

“Fundamental rights and liberties placed into our state Constitution many years ago should not be removed or rescinded by guesswork or subtle interpretation, which is what the Ethics Commission suggests,” Mark Freel, a volunteer lawyer for the ACLU, said in a news release. “Rather, those rights should remain intact, to protect all Rhode Islanders, until or unless they are repealed or modified by the very specific formal procedures in place for constitutional amendments.”

Irons abruptly resigned in 2003 after two decades in the Senate. The Journal disclosed that Irons, then chairman of the Senate committee that deals with health-care matters, had collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers. He had opposed pharmacy-choice legislation that CVS, to which he sold insurance to, wanted killed.

The Ethics Commission found probable cause that Irons violated the Code of Ethics after the watchdog group Operation Clean Government filed a complaint. The next step would typically have been a hearing before the commission. Irons, however, went to court in an attempt to block the commission prosecution.

In October, Superior Court Judge Francis J. Darigan Jr. dismissed the ethics charges against Irons, finding that the “speech in debate” clause prevented the Ethics Commission from questioning or investigating lawmakers based on their legislative acts.

Darigan also ruled that the commission’s proceedings are civil, not criminal. He said Irons, who requested a jury trial on the charges, was not entitled one because, he said, he found no evidence that anyone had been tried for such crimes prior to the passage of the state Constitution.

The commission appealed the ruling. Irons is seeking a jury trial in the event the high court overrules Darigan regarding the speech-in-debate clause. The ACLU did not weigh in on that issue.

Common Cause Rhode Island, the League of Women Voters of Rhode Island and Operation Clean Government have all filed briefs supporting the commission. The Rhode Island Supreme Court will hear arguments May 13.

kmulvane@projo.com