Sen. James C. Sheehan
The Rhode Island Constitution requires that all public officials and employees, state and local, "adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage."
In a 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 for violations relating to their core legislative acts such as voting, drafting and introducing legislation. The court interpreted the Constitution's “speech-in-debate” clause – which exists to protect lawmakers from civil suit for anything they might say in the heat of public debate -- to be a shield from prosecution for any of their “core acts,” including voting, even in cases where there might be a clear conflict of interest.
Soon after this decision, former State Senator J. Michael Lenihan, a champion of good government, set to work on closing this so-called “legislators' loophole." I proudly took up the cause when he retired from the Senate. In 2012, I was tasked by the Senate President to find common ground to restore the jurisdiction of the Ethics Commission over the General Assembly. After years of working with various parties, I drafted and introduced what I believed was a constitutional amendment that would do just that.
The amendment would have preserved the venerated "speech and debate" clause for legislators, while enabling the Ethics Commission to vigorously pursue charges against legislators even within their core legislative duties.
The amendment spelled out the appointment process for Ethics Commissioners and would have raised the number of commissioners from 9 to 11 (providing parity in the number of commissioners nominated by each chamber and raising the number of commissioners independently selected by the governor from 4 to 5). The final version of the amendment added that any person found in violation of the Code of Ethics would be granted, if desired, a de novo appeal (trial) in Superior Court based on the facts of a case as opposed to points of law or procedure (currently, all public officials and employees are provided an administrative appeal, if desired). The amendment – had it been approved by voters this November -- would have taken effect with the new legislative session (January, 2015) and the next class of legislators.
The Rhode Island Senate overwhelmingly approved the final version of the legislation, 2014-S 2824A, on a 36 to 1 vote. Passage in the House of Representatives appeared likely after the legislation was approved in the House Judiciary Committee (a House companion of the legislation was introduced and approved at the same time).
Unfortunately, all the hard work was undone in the 11th hour because of the opposition of certain outside groups, most notably Common Cause, which objected to the addition of a de novo appeal process.
Common Cause and others argued that offering a de novo appeal process would overcrowd the courts with a wave of persons seeking to challenge and overturn their ethics conviction. Yet according to randomly selected figures supplied by the Ethics Commission (pre-Irons decision), there were only three probable cause findings (of ethical wrong-doing) with one appeal in 2005. In 2007, there were five probable cause findings with three appeals. The year 2009 saw four probable cause findings with two appeals. Even if all of those had gone to Superior Court under a de novo process, it would hardly have overwhelmed the court docket.
The ethics amendment was also criticized for providing a form of appeal (de novo trial) that, some argued, is granted in perhaps only one other state or jurisdiction. In fact, according to the nonpartisan National Council of State Legislatures' Center for Ethics in Government, "[o]f the 53 state ethics commissions that exist, 17 are in states that offer a de novo appeals process for persons adversely affected by ethics commissions’ decisions."
Lastly, there was concern that this amendment would have watered down the power of the Ethics Commission. While it is true that the courts would have had the final word in those small number of actual appeals, a de novo trial would have had the effect of proofing or checking the work of Ethics Commissioners who often have little is any courtroom expertise. Accordingly, judicial review would strike a reasonable balance between the authority or power of the Ethics Commission and the rights of the accused. If you consider that a person found guilty of shoplifting may get a de novo [judicial] appeal, I believe those who give public service should be accorded the same treatment.
Far too many people already believe that state government is corrupt or unethical. This perception combined with real ethics violations will only get worse if the General Assembly fails to close the "legislators' loophole." However, were the members of the General Assembly to close this loophole, they would signal to the public that integrity does matter and help restore a measure of trust in state government. For this reason, I ask my colleagues in the House and Senate to join me in working to pass ethics reform next year.
(James C. Sheehan is the Democratic State Senator from District 36, Narragansett, North Kingstown. He is the chairman of the Senate Committee on Government Oversight.)