ETHICS TODAY
A Newsletter of the Rhode
Island Ethics Commission
Volume IV, Number 1 --- Fall 1998
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ETHICS TODAYA Newsletter of the Rhode
Island Ethics Commission
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IN THIS ISSUE:
On June 2, 1998, after a series of public hearings and workshops, the Rhode Island Ethics Commission voted to add four new provisions to the Code of Ethics. The Commission voted to adopt provisions restricting public officials and employees with decision-making authority from accepting gifts or honoraria from “interested persons,” defined as companies or persons having business before the official’s or employee’s agency. The provisions do not prohibit all gifts to public officials or employees, instead focusing on legislators and other officials and employees who have the power to affect private financial interests. Those with decision-making authority may no longer accept travel, meals, tickets or other items from vendors, regulated entities or others for which they exercise decision-making authority. Exceptions allow officials to accept certain nominal items or services of insignificant value. A series of advisory opinions issued by the Commission since the adoption of the regulations have amplified and clarified their scope. For example, members of the General Assembly and senior executive officials were advised that the regulation prohibited them from accepting complimentary, or free, attendance at dinners, receptions or other events sponsored by vendors doing business with the State and/or that would be affected by pending legislative items. Other senior executive officials were advised that the regulation prohibited the receipt of complimentary meals or passes from vendors or organizations having a financial interest in matters handled by their agency. They were further advised, however, that the regulation did not prohibit free attendance by them at functions offered by public interest organizations that do not represent their own or their members’private financial interests. The Commission also approved a regulation prohibiting public officials and employees from engaging in private financial transactions with officials and employees who they supervise. The new rule bars public officials and employees from soliciting political contributions, loans, or other items of value from subordinates. The provision provides for exceptions when the subordinate is the person initiating the transaction, for charitable campaigns sponsored by the highest official or body in the state or municipality and for transactions in the normal course of a regular commercial business. With the political campaign season in full swing, those candidates who presently hold public positions, including mayors, town and city council members, school committee members, and current state elected officials, should be mindful of this new provision. Under its express language, public officials and employees may not solicit political contributions from other public officials and employees who they supervise. Finally, the Commission adopted revised definitions clarifying which appointed officials and employees are covered by the Code of Ethics. The new regulations took effect July 1, 1998. Copies of the regulations may be obtained at the Commission offices; 40 Fountain Street, Providence RI; tel. no. (401) 222-3790. Any officials or employees who have a question about how these or other statutes or regulations in the Code of Ethics may affect them are encouraged to request advisory opinions from the Commission. Except in unusual circumstances, the Commission responds to advisory opinion requests within 15-20 days.
Election years trigger financial disclosure filing requirements for state and local candidates in Rhode Island and bring to the fore a host of other issues for public officials and employees, and for officials who oversee the election process. As campaign ’98 swings into full force, the Ethics Commission is keeping stride on several fronts.
First, R.I. Gen. Laws 36-14-16 (c) requires that “every person who is a candidate for an office as an elected officer” at the state and local level file a financial disclosure statement with the Ethics Commission within 30 days of the filing deadline for their candidacy. The Commission can grant a one-time filing extension of not more than 15 days provided that the candidate shows good cause and the request is made prior to the filing deadline. The filing requirements do not apply to candidates for election to state or local political committees or organizations.
The Commission has recently issued several advisory opinions that clarify and amplify candidates’ obligations under the Code of Ethics. In Advisory Opinion (A.O.) 98-116, the Commission advised a member of a city zoning board that he could continue to serve on that board while seeking election to the city council, and that he likely could serve on both at the same time if his election efforts were successful. The Commission further advised the official, however, that as a practical matter, the possibility of conflicting obligations and responsibilities arising from holding the two public offices could create such an inherent conflict of interest that he would have to choose one or the other. Additionally, the Commission found that, since the city council is the appointing authority for the zoning board, he could not be re-appointed to it while a member of the council. Similarly, in A.O. 98-130, the Commission advised a candidate for a town school committee that he could hold such office while his wife was a teacher in the same district. The Commission has advised prospective candidates over the years that state law does not preclude them from becoming candidates even though conflicts of interest are likely to confront them if elected. Instead, steps such as disclosure and recusal usually are sufficient to cure any conflicts that arise. Serving on the Board of Canvassers, however, may raise conflict of interest issues. In A.O. 98-118, the Commission advised a current deputy town clerk who serves as the clerk to the board of canvassers that she should not continue to serve in that capacity given her declaration as a candidate for the town clerk’s post since she would be in a position of certifying her own nomination papers for candidacy. However, in A.O. 98-122, the Commission advised a current member of a town board of canvassers that she could continue to serve in that capacity even though her spouse was a current candidate for a seat on the town school committee. She was advised, however, to refrain from any participation on matters directly related to her spouse’s candidacy. Finally, for incumbent candidates General Advisory Opinion No. 6 advises public officials that they risk violating the Code of Ethics by taking any public action that would result in an increase to their current salary or benefits. An official may take action increasing the salary or benefits for the office he or she holds provided that the increase does not take effect until after an intervening contested election, or if the official is not seeking re-election to the affected office.
In every election year, the Commission receives complaints filed by candidates or their surrogates against competing candidates for public office. While pending, the complaints often are raised as issues in the political campaigns. Beginning in 1994, the Commission addressed concerns that ethics complaints could be used as swords in political campaigns by implementing operating procedures that place the consideration of complaints involving candidates for elective office as the office’s top priority during election years. In 1994 and 1996 every complaint involving a candidate for public office was investigated and publicly resolved at least two weeks before either the primary or general election. In most instances the complaints were found to be groundless and dismissals were ordered. While this doesn’t eliminate the potential for mischief in political campaigns, it ensures that complaints, whether with or without merit, are determined as such before people cast their ballots.
Other Code provisions particularly affect candidates for public office. A candidate for public office, like any public official or employee, may not solicit or accept “any gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action or judgment” of the candidate would be influenced by such. R.I. Gen. Laws § 36-14-5(l). It also is a violation of the law for the person who gives or offers a gift, political contribution, etc., with that sort of understanding. R.I. Gen. Laws § 36-14-5(i). A regulation recently enacted by the Commission, Regulation 36-14-5009, provides even stricter prohibitions regarding the receipt of gifts by persons covered by the Code of Ethics, banning the receipt of any gift or other thing of value from a lobbyist or other “interested person” by an official with decision making authority. This regulation does provide an exemption for political contributions. Another new provision, Regulation 36-14-5011, Transaction with Subordinates, prohibits supervisors from soliciting subordinates for fundraisers or contributions. If you are a candidate and have any questions, please contact the Commission.
The Commission recently closed a number of pending cases through the settlement and adjudicative processes. On May 5, 1998, following seven days of hearings, the Commission issued a decision in the adjudication involving Thomas Lazieh, the former Mayor of Central Falls, Complaint Nos. 96-9 and 96-12, who allegedly took approximately $17,000 as an improper pay-out for vacation time after losing a bid for reelection. The Commission found that Mr. Lazieh requested, approved, and accepted vacation pay for himself based on a policy he effectuated as Mayor that departed from prior City policy. The Commission further ruled, however, that Mr. Lazieh did not knowingly and willfully violate the Code of Ethics because of some uncertainty at the time he acted as to whether accepting the pay-out was a violation of the law. The Commission also resolved four complaints with settlement agreements. In Complaints Nos. 97-16 and 97-18 the Commission ordered Joseph Ballirano, Johnston Town Council President, to pay a civil penalty of $4,000 for accepting a ticket to the 1997 Super Bowl and related travel and lodging expenses, worth approximately $2,000, from a principal of a company that specializes in recycling collection that had done business and expected to do future business with the Town of Johnson. In Complaint No. 97-40 the Commission ordered Robert Ritacco, a Westerly Town Council member, to pay a civil penalty of $300 for participating in the consideration and adoption of a Loading Zone ordinance that benefited property owned and a business operated by member of his immediate family. Finally, in Complaint No. 97-42 the Commission accepted an agreement in which Raymond Spear, the former Superintendent of Schools for the Coventry School Department, acknowledged that he violated the Code of Ethics by failing to inform or correct inflated salary information reported to the State Retirement Board on his behalf and receiving an over-valued pension for a three-month period. The Commission elected not to impose a civil penalty.
The Rhode Island Supreme Court recently issued two decisions that affect the Commission’s investigative practices and procedures. In John Doe No. 1 v. Rhode Island Ethics Commission, 707 A.2d 265 (R.I. 1998), the Supreme Court affirmed the Superior Court’s decision that R.I. Gen. Laws § 36-14-12(c)(4) requires the Commission to provide Respondents with access to its investigatory files prior to a finding of probable cause. This was contrary to Commission Regulation 1008(a), which permitted discovery only after the Commission issued a finding as to Probable Cause. As a follow-up, a three judge panel of the Supreme Court held in Clarke v. Rhode Island Ethics Commission that, not only must the Commission provide a Respondent with full discovery before a probable cause hearing, it must complete that hearing and issue probable cause findings within 180 days. R.I. Gen. Laws § 36-14-12(c) provides that the Commission “complete its investigation” within 180 days of the receipt of a complaint, with the possibility of two extensions of 60 days for good cause shown. The decision overruled a 1995 Superior Court decision that found the Commission’s procedures for completing investigations and hearings proper. The Supreme Court’s decision jeopardizes more than a dozen pending cases and the Commission has filed a Petition for Reargument before the full Court. At the Superior Court level, in Licht v. Rhode Island Ethics Commission (slip op. March 9, 1998), the Court reversed a decision of the Commission that found that Mr. Licht had violated the Code of Ethics, as the Chairperson for the Board of Governors of Higher Education, by participating in two matters that likely affected the financial interests of one of his clients, the developer of the Providence Place Mall. The Court found an insufficient causal connection between the Respondent’s participation and the interests of his client to sustain a violation of the Code of Ethics.
Can you have lunch with a prospective vendor? Can you accept an honorarium from a trade association? The Ethics Commission provides free training about how the Code of Ethics applies to public officials and employees. Some of the topics covered include gifts, outside employment, contracting, acting on matters in which family members or business associates have a financial interest, and appearing before your own board/agency. As part of this program, the Commission is offering the following dates for general training for anyone who would like to attend. If your agency or organization would like training for a particular group of officials, employees or the public, please contact the Commission to arrange a convenient time and place. Training sessions will focus on the particular issues or situations faced by that group of individuals. All materials will be provided and there is no cost to participants. Just bring your questions! To register for one of these seminars or arrange one for your group, contact Renee Stadel, RI Ethics Commission at (401)222-3790. Please indicate at the time of registration if a person is in need of a reasonable accommodation. The general training will be held at the Ethics Commission Conference room, 40 Fountain Street in Providence.
9:00 - 11:00 a.m.
October 27, 1998
December 17, 1998
February 17, 1999
April 21, 1999
June 18, 1999
1:30-3:30 p.m.
November 18, 1998
January 19, 1999
March 18, 1999
May 20, 1999
Q: A Town Zoning Board member is privately employed as a real estate developer. Her company is in the process of developing a subdivision in her city or town. The project received preliminary approval from the Planning Board. However, certain zoning variances must be obtained in order to proceed with the project. May she appear before the Zoning Board to seek approval for the variances?
A: No. By statute, a public official or employee may not represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed. See R.I. Gen. Laws § 36-14-5(e). The language of Section 5(e) clearly prohibits the Zoning Board member from appearing before her own Board to seek any variances for her project. She may not avoid this prohibition by enlisting a representative or an attorney to appear before the Board on her behalf since there is no substantive difference between appearing in person or through a representative or legal counsel. The Commission has granted hardship exceptions to this prohibition only where “vested property rights” and a principal residence or place of business were at stake. Here, however, the member’s property interests at issue relate to a private business venture. In addition, resignation from her position on the Zoning Board will not necessarily cure the problem as Section 5(e)(4) extends the prohibition for one year after the member officially severs her position with the Board. By serving on the Zoning Board while simultaneously pursuing a development project in the municipality, the member has placed herself between a rock and a hard place. Due to the absolute nature of the prohibitions contained in Section 5(e), public officials should carefully weigh the likelihood of their private business interests coming before a public body on which they serve or have an interest in serving.
The Commission has had several member changes since the last issue of ETHICS TODAY. David McCahan of Barrington was appointed by the Governor to a term that expires in September 2000. He is a Pennsylvania native with a B.S. in Economics from the Wharton School. He has worked with Northwestern Mutual Life Insurance Co. for 44 years. Mr. McCahan also has been active with the Barrington Presbyterian Church, the United Way, and the Rhode Island Life Underwriters Association and the Rhode Island CLU Association. Richard Kirby was appointed by the Governor from a list provided by the Speaker. Mr. Kirby, a resident of Providence, is engaged in the practice of law with Macktaz, Keefer & Kirby. He earned degrees at the University of Rhode Island and the Catholic University of America, Columbus School of Law. He has served as law clerk to the Chief Justice of the Rhode Island Supreme Court, Assistant Cumberland Town Solicitor, and Legal Counsel to the Subcommittee on Financial Institutions, U.S. House of Representatives. His term expires in 2002. Thomas D. Goldberg of Wakefield was appointed by the Governor from a list from the House Minority Leader. Mr. Goldberg currently practices law with the Goldberg Law Offices in Pawtucket. He holds degrees from Hobart College and the University of Tulsa School of Law and has served as an attorney with the Legal Aid Society and for the Fire Board of Appeal and Review. He has been a member of the Bar Association House of Delegates for the past 5 years. Mr. Goldberg’s term will expire in 2000.
The Commission is in the process of redesigning its web page. We will be including more information on advisory opinions, complaints, as well as providing on-line access to various forms. Look for it this fall at http://www.state.ri.us/ethics.