“I just can’t say strongly enough how much of a reversal it would be viewed as for us to suddenly take a complaint process, which, when the ethics commission began in 1986, was a secret process,” said Rhode Island Ethics Commission Executive Director/Chief Prosecutor Jason Gramitt. “There were court cases over this. We went to federal court over this. There were hearings and workshops. In the early nineties, the commission reversed course, opened up the complaint process, and it’s been open since then. To bring it back to the late eighties situation of transparency – honestly, I think it would be impossible to do and…“
The Rhode Island Ethics Commission elected a new Chair on Tuesday morning following the resignation of long time Chair Ross Cheit. After a short discussion, the board members present unanimously elected Marisa Quinn as Chair, Arianne Corrente as Vice Chair and Kyle Palumbo as Secretary.
More interesting than the election was a discussion held towards the very end of the meeting under the agenda item “New Business.” The discussion was initiated by commission member Dr Robert Salk, who made the surprise suggestion that the Ethics Commission be less transparent and not announce the complaints the commission is acting on until after the commission has completed an investigation.
Also, keep in mind this tweet from John Marion of Common Cause Rhode Island:
I’ve often said that Rhode Island has the most transparent Ethics Commission in the United States. Well now there is a national ranking to back up that statement. We’re #1 folks.https://t.co/aIWHg6yt6h— John Marion (@JohnMarionjr) October 4, 2019
Here’s the discussion:
Commission Member Robert Salk: Since we’re bringing things up to discuss later, I talked to you about this not too long ago. When we do our initial determination to allow the fellows here to research the topic of a complaint, we [shouldn’t] go public and say that Rob Salk has a complaint in, we’re going to investigate. That becomes public information before we even know anything about the realities of the complaint. My suggestion is that when we decide to go ahead and investigate a complaint, that we don’t publicly state who we’re investigating, because we don’t know the data yet. It can actually hurt individuals who, after we do the investigation, we say no, there’s nothing here. I think after the investigation we should go public, but not prior, because I could make a complaint against anybody and within the four corners of my complaint you say well, let’s go ahead and investigate, because it sounds like it could be true.
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Chair Marisa Quinn: The bar is very low [for making complaints].
Salk: The bar is very low and we’re not making a decision about the person’s complaint. We want to make a decision that, if the complaint is true, that we should investigate it…
Commission Member Kyle Palumbo: That’s the way grand juries are done, right?
Salk: But it should be private.
Palumbo: Right? Grand juries are in secret, right?
Legal Counsel Herbert DeSimone Jr: Yes.
Salk: So I think that it shouldn’t be public knowledge that we’re investigating somebody, until we have the investigation complete.
Commission Member Timothy Murphy: Can we do that?
Commission Executive Director/Chief Prosecutor Jason Gramitt: Well, since this is something that you have mentioned to me once before, I’ll just repeat what I said, which was: To even enter into the discussion of doing so, the commission needs to be fully prepared for the fact that this will be extremely unpopular because it will be viewed as a reversal of transparency. Right now we have by farr the most transparent complaint process, almost, in the entire country…
Salk: They’re using our process as a political tool sometimes. In other words, if I, as a member of society, decide I’m going to file a complaint against anybody and it gets passed to us to the point where we’re going to do an investigation, then that person’s name is being blasted in the papers that [they] have an ethics complaint, and the ethics commission is now acting on it.
Gramitt: But we can’t stop it and there’s no way to stop it. This is one of the important things to understand – if someone walks through our door right now with a complaint and files it – there’s case law on point – We can’t stop that person from going to the press and saying, “Here’s a copy of the complaint that I just filed today against this person.”
Salk: But we’re not rubber stamping it.
Quinn: Do you think that there’s an understanding of what the different points in the process are, and [what they] mean? Maybe it’s retro for me to think that we could have some kind of a training session saying, “This is what initial determination means…”
Murphy: The public doesn’t know, that’s the problem…
Palumbo: The media has an agenda.
Salk: And the Providence Journal doesn’t care about who’s being complained against. I think we should consider rolling back…
Quinn: I understand your…
Murphy: This has come up before, when we discussed the non-disclosures, the none filing complaints. How to make them administrative rather than be presented as ethics complaints. I can’t remember if we were taking that on as part of the reform initiative.
Gramitt: [But] that wasn’t a transparency issue, so there was no sense of saying…
Murphy: The issue was that it’s getting in the paper as, “an ethics complaint was filed against so and so,” but it’s actually that they just forgot to file the form.
Palumbo: I think what we’re saying is, it’s not that [complaints] would never be disclosed, it’s just after the end of an investigation, [we would report out that] a complaint was filed, here it is and here’s what we found.
Salk: That’s right. After the investigation we say a complaint was filed against this person and we found it either to be a reality or non-reality. So it could get published that a claim was filed, but we dismissed it.
Quinn: The complaint was filed and we’ll look into it. I don’t know. I don’t know. I’m worried about backing off transparency…
Salk: But the problem is that the way we do it is hurting people that did nothing wrong and it was a tool that’s used against them.
Gramitt: The last thing I’ll say about it is that while I understand that that a false allegation could be damaging, you have to weigh that against the idea of transparency.
Salk: But if you let people do their investigation and it could be the next meeting, then they come back with the facts and then we can act on the facts. But just doing the four corners point, based upon a complaint, we’re accepting all of the complaints to be true and we are then publishing the fact that this complaint was done and we are acting on it…
Gramitt: We’re publishing that we have a complaint that the commission has made no decision on, and we’re investigating and we’ll come back at the conclusion of the investigation and let the public know what we found out, whether the charges are justified or not justified. I just can’t say strongly enough how much of a reversal it would be viewed as for us to suddenly take a complaint process, which, when the ethics commission began in 1986, was a secret process. There were court cases over this. We went to federal court over this. There were hearings and workshops. In the early nineties, the commission reversed course, opened up the complaint process, and it’s been open since then. To bring it back to the late eighties situation of transparency – honestly, I think it would be impossible to do and…
Salk: So maybe we change our approach and say there was a complaint, that we decided to investigate this complaint, but by no means are we asserting this complaint. In other words, when you do a public statement at the end of our meeting, we do an add-on line saying, “just because we’re investigating, doesn’t mean we believe or defend or reject this complaint.”
Gramitt: We do that now. When I speak to reporters, every single time, [I] explain what every step of the process is. Exactly what you said is said to every reporter that calls and asks, “What happened today?” [I say], “You need to understand this was just an initial determination. It has no bearing on whether or not the charges will be sustained. All it [does] is permit us to investigate whether the charges should be sustained. That’ll happen at a later date. All it means today is that we’re looking into it. Someone filed a complaint and we’ve agreed to look into it, period.”
What I just said, I say to every single reporter who calls and they generally print something like that. The problem is [that] the headline will not include that part. And it’s the headline, above the fold, that I think you’re concerned with. But for those people who stick with the story and read through the rest of it, they generally find that information somewhere in there. Whether or not it’s relevant for their purposes is the question.
Quinn: Do we know what, roughly, the percentage of those initial determinations that turn out to be yes, after review we have probable cause…
Gramitt: I don’t know. I would say it’s probably somewhere around 50 percent, which sounds about right. We don’t have any incentive to find people in violation of code or to find people not in violation. Here, and I assume at other law enforcement agencies, it’s just a search for the truth: Did you violate the code or didn’t you? We don’t have a stake in it either way and we don’t have a reason to recommend one way or the other.
DeSimone: One change we have made is that now, when we do find no probable cause, we write a decision that indicates why we did not find probable cause. Which wasn’t the case a few years ago.
Commission Vice Chair Arianne Corrente: In my mind it may help to alleviate some of the unintended consequence of how oftentimes the complaint filing process, our pre-process, gets covered by the press. That’s not something that is under our control, particularly if Jason is already making the assertion that this is the beginning and not the end…
Salk: I’m thinking of it more at the time when we’re presenting the facts, after our closed session, that we start out with a disclosure…
Quinn: Yeah, okay yeah.
Salk: We could decide the language. The disclosure might say that there were complaints filed against individuals, we have not acted on those complaints, we don’t even know the validity of these complaints. We are allowing our researchers to do the research on these complaints.
Corrente: So it’s saying what Jason says, but saying it publicly in a meeting.
Salk: Just starting with that line, have a standard line, because the truth matters. We don’t know [the truth of a complaint], until we get the investigation done.
Quinn: I think it’s worth looking into.
Gramitt: That’s a very valuable suggestion. A standard script to be read by the chair during the report out. She comes back after executive session, announces that we’ve initially determined that the complaint’s facts are sufficient and all the rest, and then, “It’s important to note that initial determinations are not a finding of any…”
Salk: I would start that as the headline, that we have decided to investigate people, that this investigation does not mean anything at this point.
DeSimone: What you’re saying is that no decision has been made as to the validity of a complaint.
Salk: That’s right.
DeSimone: That’s the line.
Murphy: All it is is that the complaint alleges facts…
Gramitt: I would suggest, by the way – we moved – the agenda item we’re on right now is anything proposed for future commission agendas. So rather than making any decisions now – I think we’ve had a nice discussion [and now] we move into the next phase. Why don’t you allow us to bring back a proposal along those lines, draft language, to use following initial determinations and we’ll include dthat line item for discussion and voting [on the agenda]. And that way we can have a full review…
DeSimone: That would need to be an agenda item…
Under the Open Meetings Act (OMA), a lengthy conversation on a topic not properly listed on the agenda is a violation. The Rhode Island Ethics Commission came dangerously close to violating the OMA here, only saving themselves by the last second intervention of Executive Director Jason Gramitt, who smartly suggested placing this issue on the agenda for future consideration.
Here’s the video of the discussion:
The Rhode Island Ethics Commission is comprised of nine Rhode Islanders, though currently only eight seats are filled. Four members of the commission are appointed directly by the Governor and five are appointed by the Governor from lists of nominees submitted by the majority and minority leaders in the House and Senate and by the House Speaker, respectively.
Commission members serve a five year term, but stay on until replaced. This essentially translates to unlimited appointments, such as the case of Roy Cheit, who served 15 years, or Robert Salk, was appointed by Governor Carcieri eight years ago.
While serving on the Ethics Commission, members are prohibited from holding or campaigning for public office, holding office in any political party or political committee, and participating in or contributing to any political campaign. Commissioners may neither directly nor indirectly attempt to influence any decision by a governmental body.
The current members of the Rhode Island Ethics Commission, who were also present for this discussion at the January 7 meeting, are:
- Chair Marisa Quinn: Appointed directly by Governor Gina Raimondo in 2015
- Vice Chair Arianne Corrente: Appointed by Governor Gina Raimondo in 2017 from a list of nominees provided by Senate President Dominick Ruggiero
- Secretary Kyle Palumbo: Appointed by the Governor in 2019 from a list of nominees provided by the House Majority Leader Joseph Shekarchi.
- Dr Robert Salk: Appointed directly by Governor Donald Carcieri in 2012.
- Dr Timothy Murphy: Appointed directly by Governor Gina Raimondo in 2015.
Also present for the discussion were:
- Rhode Island Ethics Commission’s Executive Director/Chief Prosecutor Jason Gramitt
- Rhode Island Ethics Commission’s Legal Counsel Herbert DeSimone Jr, Esq
Absent from the January 7 meeting:
- Emili B Vaziri: Appointed by Governor Gina Raimondo in 2019 from a list of nominees provided by Speaker of the House Nicholas Mattiello.
- Douglas Bennett: Appointed by Governor Gina Raimondo in 2016 from a list of nominations provided by the House Minority Leader.
- Therese Antone, RSM: Appointed directly by Governor Gina Raimondo in 2015.
- Vacant: Appointed by the Governor from a list of nominations provided by the Senate Minority Leader.
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