Minutes June 29, 2021 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 29, 2021 The Rhode Island Ethics Commission remotely conducted its 11th meeting of 2021 in Zoom webinar format at 9:00 a.m. on Tuesday, June 29, 2021, pursuant to the notice published at the Commission offices, 40 Fountain Street, Providence, Rhode Island, and electronically with the Rhode Island Secretary of State.[1] The following Commissioners were present: Arianne Corrente, Acting Chair Matthew D. Strauss Kyle P. Palumbo, Secretary Holly J. Susi Lauren E. Jones The following Commissioners were not present: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; and Timothy Murphy. Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Jason Gramitt, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Lynne Radiches, Staff Attorney/Education Coordinator; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross, Peter J. Mancini, and Gary V. Petrarca. At 9:01 a.m., the Acting Chairopened the meeting. The first order of business was: Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues. Executive Director Gramitt stated that the Commission has been operating pursuant to the Governor’s executive orders allowing public bodies to conduct remote meetings during the COVID-19 pandemic. He explained that Governor McKee issued a new order, Executive Order 21-72, after the Commission posted the agenda for today’s meeting. Executive Director Gramitt stated that the Commission will consider the draft advisory opinions noticed for today in Open Session after which it will convene in a separate Executive Session and then return to this Open Session to provide a live report on all actions taken in Executive Session. He informed that copies of today’s agenda and draft advisory opinions are accessible on the Commission’s website under the link for Meeting Materials, and a written report of all actions taken in Executive Session will be published and available on the website after the meeting ends or can be made available by calling the Commission’s office. The next order of business was: Approval of minutes of the Open Session held on June 8, 2021. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was VOTED: To approve the minutes of the Open Session held on June 8, 2021. AYES: Lauren E. Jones; Kyle P. Palumbo; Matthew D. Strauss; and Holly Susi. ABSTENTION: Arianne Corrente. The next order of business was: Director’s Report: Status report and updates. a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing Executive Director Gramitt explained that Executive Order 21-72 will expire on July 23, 2021. He stated that legislation to allow remote meetings to continue permanently subject to a sunset provision passed in the House of Representatives last Friday and is now before the Senate for its vote. He further stated that there is also a Senate version of the same bill that passed in the House, but the Senate version has not left the Senate committee yet. In response to Commissioner Jones, Executive Director Gramitt stated that the two bills originated with a working group comprised of several state agencies. He noted that, absent legislative action, it is likely that the next Commission meeting will be held in-person. b.) Complaints and investigations pending There are three active cases pending. Executive Director Gramitt informed that a probable cause hearing has been noticed in the Alba matter for today in Executive Session as well as a motion for an extension of time in Smiley. c.) Advisory opinions pending There are three advisory opinions noticed for today’s meeting and seven or eight are pending. d.) Access to Public Records Act requests since last meeting There were four APRA requests received since the last meeting, three of which were granted within one business day while one required a few days but was still granted within the 10-day statutory period. Executive Director Gramitt informed that one request related to a complaint, one to a recusal, one to an advisory opinion, and one to financial disclosure. e.) Financial Disclosure: Update on upcoming 2020 filing period Executive Director Gramitt informed that the 60-day extension period requested by some filers expires today. He stated that the compliance rate is currently at 97%, largely due to the staff’s creation of and adherence to a formalized enforcement schedule. Executive Director Gramitt stated there are approximately 140 non-filers remaining and the staff is now determining the next enforcement step with respect to filing complaints. The next order of business was: Advisory Opinions. The advisory opinions were based on draft advisory opinions prepared by Commission Staff for review by the Commission and were scheduled as items on the Open Session Agenda for this date. The first advisory opinionwas that of: James B. King Jr., a member of the Jamestown Zoning Board of Review, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before the municipal agency of which he is a member to seek a setback variance in order to construct a garage on his personal residence. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present nor was his attorney. Staff Attorney Popova Papa informed that Attorney Infantolino had represented to her that he would attend but had also consented to the Commission proceeding in their absence. Upon motion made by Commissioner Jones and duly seconded by Commissioner Palumbo, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to James B. King Jr., a member of the Jamestown Zoning Board of Review. The next advisory opinion was that of: Matthew McGeorge, AIA, LEED AP, the chairperson of the East Greenwich Historic District Commission, who in his private capacity is an architect, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on representing another person before the municipal agency of which the Petitioner is a member. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. Staff Attorney Popova Papa stated that she was unable to reach him about his attendance today but that the Commission has proceeded in his absence in the past. Upon motion made by Commissioner Susi and duly seconded by Commissioner Jones, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Matthew McGeorge, AIA, LEED AP, the chairperson of the East Greenwich Historic District Commission, who in his private capacity is an architect. The final advisory opinion was that of: David DeCost, Jr., a principal engineer for the Rhode Island Department of Environmental Management’s Division of Planning and Development, who in his private capacity owns and operates an apple cider orchard, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from applying for a Local Agriculture and Seafood Act Grant advertised by the Rhode Island Department of Environmental Management’s Division of Agriculture and, if so, whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the state agency by which he is currently employed for purposes of seeking the grant. Staff Attorney Radiches presented the Commission Staff recommendations for two versions of the advisory opinion drafted for the Petitioner. She informed the Commission that both versions contained the same facts and citations to the Code but had different legal analyses and recommendations for the Commission’s consideration. The Petitioner was present via video link. Staff Attorney Radiches explained that she learned a few days earlier that the Petitioner did not disclose his full-time position with the Rhode Island Department of Environmental Management’s (“DEM”) Division of Planning and Development on his grant application. The Petitioner experienced technical issues during Staff Attorney Radiches’ presentation but was able to rejoin the meeting. The Petitioner addressed the Commission and provided some background on his farm and thanked the Commission for its consideration of this matter. In response to Commissioner Jones, the Petitioner confirmed that the loan and monitoring process falls under the DEM’s Division of Agriculture and that the Division of Planning and Development, within which he works, is not involved with grants, funding, or monitoring the application process. In response to Commissioner Palumbo, the Petitioner affirmed that the monitoring of grant funds relates to whether the applicant uses the funds for which he has appliedin conformance with the manner stated in the grant application. Commissioner Palumbo proposed a modification to the advisory opinion to state that the Petitioner was not required to disclose his position with DEM on his grant application. Staff Attorney Radiches stated that whilethat information is contained in the facts, she proposed adding language on page two of the draft to reflect that the Petitioner did not disclose his position on the application. In response to Commissioner Strauss, the Petitioner explained that included within the DEM are the Environmental Protection Bureau and the Bureau of Natural Resources. He also explained the relationship between the DEM’s Division of Planning and Development and the Division of Agriculture. He represented that he is not aware of any overlap between the divisions during his five years of employment at DEM. Commissioner Susi expressed concern over the fact that the Petitioner’s name is on the grant application and inquired whether there is anyone on the advisory committee with whom he might be acquainted. The Petitioner stated that he does not know any of the advisory committee members personally. Commissioner Susi suggested the addition of a sentence at the end of the draft relating to the Petitioner’s non-disclosure of his employment at DEM on his application. In response to Legal Counsel DeSimone, Staff Attorney Radiches stated her understanding that the following language will be added at the end of version two: (1) before the last sentence in the first full paragraph on page two, “The Petitioner represents that he did not disclose his full-time employment as a principal civil engineer in the DEM’s Division of Planning & Development on his LASA Grant application;” (2) before the Conclusion on page seven, language supporting that the determination by a DEM employee of whether the Petitioner’s grant award is being used in conformance with the methods stated in his application is, arguably, ministerial, given the Petitioner’s having specifically identified his intended use of the grant award as the purchase of apple processing equipment; and (3) to the very last sentence of the advisory opinion, “provided that he does not use or attempt to use his official position to influence the monitoring by a DEM employee of the use of any grant award the Petitioner might receive.” In response to Acting Chair Corrente, Legal Counsel DeSimone advised that the Commission should move to accept advisory opinion version two as amended. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To issue an advisory opinion version two, as amended and attached hereto, to David DeCost, Jr., a principal engineer for the Rhode Island Department of Environmental Management’s Division of Planning and Development, who in his private capacity owns and operates an apple cider orchard. The next order of business was: New Business proposed for future Commission agendas and general comments from the Commission. There was none. At 9:52 a.m., upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on June 8, 2021, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) In re: Suzanna Alba, Complaint No. 2020-5, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). c.) In re: Brett Smiley, Complaint No. 2021-1, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). d.) Motion to return to Open Session. At 10:55 a.m., the Commission reconvened in Open Session. The next order of business was: Motion to seal minutes of Executive Session held on June 29, 2021. Upon motion made by Commissioner Jones and duly seconded by Commissioner Susi, it was unanimously VOTED: To seal the minutes of the Executive Session held on June 29, 2021. The next order of business was: Report on actions taken in Executive Session. Acting Chair Corrente reported that the Commission took the following actions in Executive Session, which information will also be available on the Commission’s website: 1. Voted (4-0) to approve the minutes of the Executive Session held on June 8, 2021. [Reporter’s Note: The vote was as follows: AYES: Lauren E. Jones; Kyle P. Palumbo; Matthew D. Strauss; and Holly Susi. ABSTENTION: Arianne Corrente.] 2. Voted (4-1) in the matter of In re: Suzanna Alba, Complaint No. 2020-5, to find that probable cause does not exist to believe that the Respondent committed a knowing and willful violation of the Code of Ethics and to dismiss the Complaint. [Reporter’s Note: The vote was as follows: AYES: Arianne Corrente; Lauren E. Jones; Matthew D. Strauss; and Holly Susi. NOES: Kyle P. Palumbo.] 3. Unanimously voted (5-0) in the matter of In re: Brett Smiley, Complaint No. 2021-1, to enlarge time for investigation for 60 days. 4. Unanimously voted (5-0) to return to Open Session. At 11:00 a.m., upon motion made by Commissioner Palumbo and duly seconded by Commissioner Jones, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On March 9, 2020, former Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, the former Governor issued Executive Order 20-46 on June 12, 2020, which, in part, relieved public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act. The issuance of Executive Order 21-72 by Governor Daniel McKee on June 24, 2021, supersedes Executive Order 20-46 and extends said relief through July 23, 2021.