R.I. democrat wants legislators to be investigated and punished by "appointed panel" instead of the rule of law

03/24/2014

Proposed constitutional amendment would close R.I’s ethics loophole

While high-level drama swirled in recent days around the police raid, House Speaker Gordon Fox’s abrupt resignation and the battle royal to succeed him, a long-running battle to reinstate “ethics” on Smith Hill simmered on.

On March 19, the General Assembly dispatched a press release titled: “Sheehan proposes Constitutional amendment on ethics to go before voters.”

Sen. James Sheehan, D-North Kingstown, described the legislation as “the result of years of working with various parties to find a compromise resolution that preserves free speech while restoring the Ethics Commission’s jurisdiction over core legislative duties.”

In 2009, ruling in a case involving former Senate President William V. Irons, the Rhode Island Supreme Court effectively exempted state lawmakers from scrutiny and prosecution by the state Ethics Commission unless, as was true in Fox’s case, they failed to disclose sources of income.

The court interpreted a “speech-in-debate” clause that had traditionally protected lawmakers from civil suit for anything they might say in the heat of public debate as a shield from prosecution for any of their “core acts,” including voting, even in cases where there might be a clear conflict of interest.

Sheehan’s resolution would give voters a chance this November to amend the state Constitution to say: “For any speech in debate in either house, no member shall be questioned in any other place except by the Ethics Commission, provided that members of the General Assembly shall be free, without question to penalty, to express an opinion or engage in debate, verbally or in writing, relative to any matter within their core legislative duties.”

Explaining his intent in a statement issued by the General Assembly press office, Sheehan said: “When voters approved the establishment of the Ethics Commission more than two decades ago, the assumption was that ethical behavior would be expected of all elected officials. … However, the mere existence of the Ethics Commission was never intended to stifle debate or keep legislators from carrying out their duties. The language I propose should make that abundantly clear.”

Sheehan said his bill has 22 co-sponsors, and that is significant in the 38-member Senate, where the last serious proposal to close the ethics loophole — championed by Fox — went to die.

John Marion, executive director of Common Cause, says the citizens’ advocacy group would prefer the much simpler approach proposed in the House again this year by House Oversight Chairman Michael Marcello, who has emerged as one of the candidates for Speaker.

“Our resolution (which we asked Chair Marcello to sponsor) was written to simply reverse the holding in Irons, while Sheehan’s tries to settle other issues. That said, we would be happy to see either pass,” Marion said.

“There are two main differences between the Sheehan constitutional amendment and the one we have been promoting since 2010,” he said.

As a starting point, Sheehan’s resolution would spell out the Ethics Commission appointment process in the Constitution, where the governor makes appointments on his (or her) own and selects five from lists of names recommended by House and Senate leaders.

According to Marion, Sheehan’s bill “essentially allows legislators who would otherwise have to recuse from voting because of a potential conflict to still express their opinion on legislation. … While we would prefer to not have that clause in the proposed amendment, we can live with it because it’s the recusal from the vote that matters most.”

The Marcello bill would ultimately give the Ethics Commission jurisdiction over everything a legislator does.

“Since the Irons decision in 2009, there has been nothing in place in either chamber to govern conflicts of interest among legislators,” Marion noted.

“The Ethics Commission has declined to offer advisory opinions on matters that might involve core legislative activities. So even well-meaning legislators who are looking to avoid conflicts have no place to turn to for legal advice,” he said.

“I can’t think of a single thing the new speaker could do to assure the people of Rhode Island and the members of the House, that they want to foster an ethical environment than to put either our amendment, or Sheehan’s amendment, on the ballot this November.”

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