Minutes August 8, 2017 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION August 8, 2017 The Rhode Island Ethics Commission held its 9th meeting of 2017 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street, 8th Floor, Providence, Rhode Island, on Tuesday, August 8, 2017, pursuant to the notice published at the Commission offices, the State House Library, and electronically with the Rhode Island Secretary of State. The following Commissioners were present: Ross Cheit, Chair J. Douglas Bennett Marisa A. Quinn, Vice Chair Arianne Corrente Robert A. Salk, Secretary Timothy Murphy M. Therese Antone James V. Murray The following Commissioner(s) were not present: John D. Lynch, Jr. Also present were Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Jason Gramitt, Education Coordinator/Staff Attorney; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross and Gary V. Petrarca. At 9:00 a.m., the Chair opened the meeting. The first order of business was: Administration of Oath of Office to Arianne Corrente Chair Cheit administered the Oath of Office to Commissioner Corrente. The next order of business was: Approval of minutes of the Open Session held on June 20, 2017. Upon motion made by Commissioner Murray and duly seconded by Commissioner Antone, it was VOTED: To approve minutes of the Open Session held on June 20, 2017. AYES: M. Therese Antone; Robert A. Salk; James V. Murray; and Ross Cheit. ABSTENTIONS: J. Douglas Bennett; Arianne Corrente; Timothy Murphy; and Marisa A. Quinn. 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 opinion was that of: Roger F. Winiarski, a member of the Tiverton Harbor and Coastal Water Management Commission, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before his own agency in order to appeal a denial of his mooring registration renewal application. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Uponmotion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Roger F. Winiarski, a member of the Tiverton Harbor and Coastal Water Management Commission. The next advisory opinion was that of: Representative Lauren H. Carson, a legislator serving in the Rhode Island House of Representatives, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, through her private employment with a non-profit organization, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was present. She addressed the Commission and explained that, of the $300,000 in grant funds for which the Aquidneck Island Planning Commission will submit a grant proposal to the Rhode Island Department of Environmental Management (“DEM”), $25,000 has been allocated for community engagement programs and will be distributed to several different organizations on Aquidneck Island and not solely to her employer. Staff Attorney Gramitt informed that the draft advisory opinion will be amended to reflect this clarification. In response to Commissioner Murphy, the Petitioner explained that the $35 million Green Economy Bond (“Bond”) will be divided between different agencies for stormwater management purposes and that, in her official capacity, she only voted on the Bond itself and was not involved in any disbursement decisions with respect thereto. In response to Commissioner Bennett, the Petitioner informed that the concept of the Bond began as a collaborative process in the legislature. She further explained that either DEM goes directly to the Chair of the Finance Committee or the Environmental Committee. In response to Chair Cheit, the Petitioner stated that she played no role in having the Bond placed on the ballot, a decision that falls upon the Chair of the Finance Committee. She further noted that she does not know how DEM will spend the approved funding because that is decided at its administrative level. Uponmotion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, amended and attached hereto, to Representative Lauren H. Carson, a legislator serving in the Rhode Island House of Representatives. The next advisory opinion was that of: Karen Verrengia, a member of the Rhode Island Energy Efficiency and Resource Management Council, requests an advisory opinion regarding what limitations or prohibitions, if any, the Code of Ethics imposes upon her in carrying out her public duties, given that her private employer is a subcontractor for National Grid, whose energy efficiency programs the Council monitors and evaluates. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Chair Cheit inquired as to the language “involve or financially impact” found in the last paragraph of the draft and whether the term “involve” could be replaced by something more specific to capture the intent of the Code’s provisions. Staff Attorney Gramitt addressed the Commission and stated that this could be done going forward. In response to Chair Cheit, the Petitioner explained that her employer, CLEAResult, does not appear before the Rhode Island Energy Efficiency and Resource Management Council (“Council”). In reply to Commissioner Murphy, the Petitioner informed that two-thirds of her work involves National Grid. She further stated that, as the State’s only supplier of gas and electricity, National Grid works closely with the Council. She noted, however, that CLEAResult is not involved with the Council. She explained that generally, National Grid puts out requests for proposals to which CLEAResult might respond, but as an employee of CLEAResult, she is not involved in responding to bids. She also stated that the budget on which the Council votes does not reflect the identity of National Grid’s subcontractors such as CLEAResult. The Petitioner explained that the Council votes on the final budget and not on any line items that might impact her employer. She stated that she will consult with the Council regarding the Commission’s decision. Commissioner Murphy cautioned that, even if the Council permits her to continue serving, she is accountable for herself under the Code and must decide if she can continue to do both. Chair Cheit noted that, because the Petitioner did not raise specific facts, the guidance in the advisory opinion is general and the Commission is limited in its advice. Chair Cheit suggested that the Petitioner seek further advice from the Commission as more specific situations arise. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Karen Verrengia, a member of the Rhode Island Energy Efficiency and Resource Management Council. The next advisory opinion was that of: Nathan T. Calouro, a member of the Bristol Town Council, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition against representing himself before the Bristol Zoning Board, over which the Town Council has appointing authority, in order to seek a dimensional variance for his personal property. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. Upon motion made by Commissioner Murray and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Nathan T. Calouro, a member of the Bristol Town Council. The next advisory opinion was that of: Andranik Tahmassian, a former Principal Civil Engineer in the Bridge Design Section of the Rhode Island Department of Transportation, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics in light of his new private employment with a private engineering firm. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present. The Petitioner was accompanied by Fred Vincent, a representative of the Petitioner’s new employer. The Petitioner addressed the Commission, informing that he is a part-time employee of GM2 Associates and does not make any decisions nor does he exercise any management authority. In response to Commissioner Murphy, Staff Attorney Popova Papa explained that the Petitioner is permitted to work on projects that might be presented before the Rhode Island Department of Transportation (“DOT”) as long as he does not appear before the DOT and his name does not appear on any documents submitted to the DOT for a period of one year from the date of his retirement. Commissioner Salk noted that the Petitioner only has four months of that one-year period remaining. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murphy, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Andranik Tahmassian, a former Principal Civil Engineer in the Bridge Design Section of the Rhode Island Department of Transportation. The next advisory opinion was that of: Gregory Maxwell, AIA, a member 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 a client before his own board. Staff Attorney Gramitt addressed the Commission. The Petitioner was not present. Staff Attorney Gramitt informed the Commission that the Petitioner had contacted Staff Attorney Popova Papa the day before this meeting, asking that the instant draft advisory opinion be withdrawn. Staff Attorney Gramitt stated that the draft had been mailed to the Petitioner one week earlier and placed on the agenda for today’s Commission meeting. He further stated that the Petitioner represented that he will not appear before his board. Staff Attorney Gramitt noted that the Staff defers to the Commission as to whether the advisory opinion should be withdrawn at this juncture. Discussion ensued among the Commissioners as to whether the Petitioner should be required to provide a reason for his late request to withdraw. Commissioner Antone stated that the process for seeking an advisory opinion is a voluntary one. Commissioner Salk commented that the Petitioner may have asked to withdraw the advisory opinion to avoid any publicity. Commissioner Murray expressed concern with the chilling effect that disallowing the withdrawal might have on those seeking advisory opinions. Chair Cheit stated that the Petitioner should be required to represent before the Commission the reason for his late request to withdraw. He further noted that all advisory opinions involve the Staff’s time and have educational value. Commissioner Bennett expressed concern with setting precedent by allowing the late withdrawal. Chair Cheit inquired as to whether the Petitioner had an opportunity to withdraw his request for an advisory opinion prior to the completion of the draft and the posting of the agenda. Staff Attorney Popova Papa explained that the Petitioner had represented to her earlier in the process that he did not believe that he qualified as an historic architect but wanted an advisory opinion to show to his client. Staff Attorney Popova Papa further explained that, in speaking with the Petitioner the day before this meeting, he represented that he is no longer taking the client. In response to Commissioner Corrente, Staff Attorney Gramitt stated that the draft advisory opinion is a public document, although it will not appear on the Commission’s website as a formal opinion, and the Commission’s discussion of this matter will be reflected in the minutes. Commissioner Murphy suggested that the Petitioner represent to the Commission the reason for his withdrawal request, and he moved to defer this matter until the Commission’s next meeting, providing the Petitioner with an opportunity to appear and explain or submit a letter. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Bennett, it was VOTED: To table the Commission’s vote until its next meeting with an opportunity for the Petitioner, Gregory Maxwell, AIA, to appear and for the Commission to ask him to provide, in person or in writing, an explanation as to why he seeks to withdraw his request for an advisory opinion. AYES: Robert A. Salk; J. Douglas Bennett; Arianne Corrente; Timothy Murphy; and Ross Cheit. NOES: M. Therese Antone; James V. Murray; and Marisa A. Quinn. The final advisory opinion was that of: W. Douglas Gilpin, Jr., FAIA, a former member of the Town of New Shoreham 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 his clients before his former board. Staff Attorney Gramitt presented the Commission Staff recommendation. The Petitioner was not present. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Quinn, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to W. Douglas Gilpin, Jr., FAIA, a former member of the Town of New Shoreham Historic District Commission. Director’s Report. Executive Director Willever reported that there were five (5) complaints, seven (7) advisory opinions, and two (2) litigation matters pending. He stated that twenty-two (22) APRA requests were received since the last meeting, all of which were granted within one business day. The next order of business was: Executive Session. At 10:17 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Murray, it was unanimously VOTED: To go into Executive Session, to wit: 1. Motion to approve the minutes of the Executive Session held on June 20, 2017, pursuant to R.I. Gen. Laws § 42-46-5(2) and (4). 2. In re: Gregory Laboissonniere, Complaint No. 2017-6, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) and (4). 3. Luis Aponte v. Rhode Island Ethics Commission, Superior Court C.A. No. PC2017-1557, pursuant to R.I. Gen. Laws § 42-46-5(a)(2). 4. Antonio S. Fonseca v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC2017-3591, pursuant to R.I. Gen. Laws § 42-46-5(a)(2). 5. Motion to return to Open Session. The Commission reconvened in Open Session at 10:47 a.m. The next order of business was: Motion to seal minutes of Executive Session held on August 8, 2017. Upon motion made by Commissioner Quinn and duly seconded by Commissioner Murray, it was unanimously VOTED: To seal minutes of the Executive Session held on August 8, 2017. The next order of business was: Report on actions taken in Executive Session. Chair Cheit reported that the Commission took the following actions in Executive Session: 1. Voted (4-0) to approve the minutes of the Executive Session held on June 20, 2017. [Reporter’s note – The vote was as follows: AYES: M. Therese Antone; Robert A. Salk; James V. Murray; and Ross Cheit. ABSTENTIONS: J. Douglas Bennett; Arianne Corrente; Timothy Murphy; and Marisa A. Quinn.] 2. Unanimously voted (8-0) to initially determine that the facts alleged in In re: Gregory Laboissonniere, Complaint No. 2017-6, if true, are sufficient to constitute a knowing and willful violation of the Code of Ethics and authorized an investigation. 3. Received a litigation update in the matter of Luis Aponte v. Rhode Island Ethics Commission, Superior Court C.A. No. PC2017-1557. No further action is required at this time. 4. Received a litigation update in the matter of Antonio S. Fonseca v. Rhode Island Ethics Commission et al., Superior Court C.A. No. PC2017-3591. No further action is required at this time. The next order of business was: Report from Commission Staff, and discussion, regarding financial disclosure, including: (a) Review of final dispositions in staff-initiated complaints relating to non-filing of the 2015 Financial Disclosure Statement; and (b) Summary of filing compliance and compliance efforts relating to the 2016 Financial Disclosure Statement. Staff Attorney Gramitt informed the Commission that the compliance rate for filing the 2015 Financial Disclosure Statement was 98% and about 100 officials did not file. He explained that because it is not feasible for the Staff to file complaints against all non-filers, the Staff identifies pockets or categories of non-filers and then files complaints against all the officials in those categories. He further explained that two years ago, the Commission adopted a fine schedule that authorized the Staff to settle qualifying complaints resolved within 10 business days of the filing of the complaint for $100, and complaints settled after 10 days for $500 or less in appropriate cases upon a finding of unique circumstances. Staff Attorney Gramitt informed that the Staff initiated 12 non-filing complaints related to the 2015 Financial Disclosure Statement, all of which were resolved for $100 pursuant to the fine schedule. He also commented that the settlement of all non-filing cases prior to a probable cause hearing or an adjudication is primarily attributable to the hard work of the Commission Investigators and Financial Disclosure Officer, Michelle Berg. Staff Attorney Gramitt informed that, for the current 2016 filing year, financial disclosure is in the voluntary compliance stage, and the compliance rate is currently 97%. He explained that the Staff will soon be meeting to identify categories of non-compliance and determine the Staff’s capacity to handle the complaints that will be filed. In response to Chair Cheit, Staff Attorney Gramitt explained that educational sessions have been provided to charter schools over the past few years, but they remain a challenging group. He further stated that each charter school is its own sovereign island and some are more organized than others. In response to Chair Cheit’s further inquiry, Staff Attorney Gramitt stated that he has been working work with the Board of Education (“Board”) to obtain compliance from the charter schools, and the Board has been helpful to this end. The next order of business was: Status Update from Personnel Subcommittee regarding Search for Legal Counsel Personnel Subcommittee Chair Quinn informed the Commission that the Personnel Subcommittee has completed its review of the applications submitted for the position of Legal Counsel and selected three (3) semifinalists to be interviewed on August 11 and August 16, 2017. Following those interviews, the Subcommittee will recommend one or two finalists to the full Commission for interviews and final selection. The next order of business was: Resolution of the Rhode Island Ethics Commission in Recognition and Profound Appreciation of Distinguished Service by former Commissioner Mark B. Heffner, Esq. Chair Cheit proposed a new procedure for recognizing the hard work and years of distinguished service of those Commissioners whose terms have expired and expressing the Commission’s gratitude. Chair Cheit stated that Mark B. Heffner was appointed by Governor Carcieri to the Ethics Commission in 2009 and served continuously and devotedly in said capacity. Chair Cheit asked the Commission for a unanimous proclamation to adopt the following resolution. Upon motion made by Commissioner Antone and duly seconded by Commissioner Murray, it was unanimously voted to adopt: Resolution of the Rhode Island Ethics Commission in Recognition and Profound Appreciation of Distinguished Service by Former Commissioner Mark B. Heffner, Esq. Duly passed on August 8, 2017 WHEREAS, on March 19, 2009, upon the nomination of the Honorable Teresa Paiva Weed, President of the Rhode Island Senate, Governor Donald Carcieri appointed Mark B. Heffner to serve on the Rhode Island Ethics Commission; and WHEREAS, since his appointment Commissioner Heffner has faithfully and with honor, integrity and great distinction, served on the Rhode Island Ethics Commission for over eight years until his term expired and his replacement was named; it is hereby RESOLVED, that the Rhode Island Ethics Commission formally acknowledges and extends its profound appreciation to Mark B. Heffner for his many years of distinguished service to the People of the State of Rhode Island by helping to guide the Rhode Island Ethics Commission’s continuing mission to foster and maintain an ethical, open and accountable administration of government in Rhode Island. The undersigned hereby attests that the foregoing Resolution was duly adopted by a unanimous vote of the Rhode Island Ethics Commission on this 8th day of August, 2017, and directs that said Resolution shall be duly recorded in the official minutes of the Rhode Island Ethics Commission. ______________________________ Ross Cheit, Chair Rhode Island Ethics Commission The final order of business was: New Business. Chair Cheit stated that the Commission should consider adopting a regulation that sets forth the Commission’s procedure for handling requests for withdrawing advisory opinions prior to their formal issuance and asked the Staff to arrange for this matter to be presented at a future meeting. Before concluding, Chair Cheit welcomed Commissioner Corrente to the Commission. At 11:02 a.m., upon motion made by Commissioner Antone and duly seconded by Commissioner Murray, it was unanimously VOTED: To adjourn. Respectfully submitted, ______________________________ Robert A. Salk Secretary