RI Legislature Schemes to Ensure Its Continuing Immunity to Ethics Jurisdiction

Rhode Island's lawmakers really know how to protect themselves. They have fought hard and long to effectively preserve their immunity from state ethics commission jurisdiction. However, with pressure on them to recommend to their constituents a constitutional amendment that would give the EC jurisdiction over them, despite the state's Speech in (sic) Debate Clause, they have planted a bomb in their proposed amendment that will ensure that even the state's good government organizations would oppose it (and that few ordinary citizens would understand what all the fuss was about).

What the state legislature did was to add in a de novo review process, which would allow any state or local official the EC found in violation of the state ethics code to seek a new court trial. The court would not be able to consider the EC's factual findings. In other words, instead of a right to appeal an EC ruling (where the court would determine whether the EC had done anything inappropriate), all officials would get a second chance to argue the facts and the law, and to have their case decided by a judge who would likely care far less about government ethics and have less expertise than the EC.

Knowing that, with limited resources, it would have to argue the case all over again, the EC is far more likely not to pursue a complex case and instead dismiss the complaint or enter into a settlement (in other words, by threatening delay, increased costs, and a greater likelihood of an override or rehearing, officials are put in the driver's seat). In addition, the courts would have a greater role in interpreting the ethics code and getting involved in what is otherwise citizen oversight of government officials This would change the nature and effectiveness of the state's ethics program, and undermine the EC's authority.

This is why de novo review is so rare. In my database, the only example I could find was in Anchorage, and only when dismissal of an official is the sanction.

Because all of this is very complicated, good government groups are calling the proposed de novo process a "get-out-of-jail-free card," which allows "another bite at the apple."

It appears to be ironic that the same elected officials who do not want their ethics violations to be considered outside the legislature itself are willing to have them considered not only by the EC, as envisaged by the original citizen initiative, but also by the judiciary. This implies that the problem has never been having their conduct "heard" in "another place," as the Speech in Debate Clause states Thus, if this is not a tactic to get a constitutional amendment defeated or withdrawn, then legislators have all along been misrepresenting the basis for their opposition to EC jurisdiction.

This is not the case. Legislators do in fact care about their ethics cases being heard outside the legislature. They don't want the courts to hear these cases, and they certainly don't care about the review of local officials' cases. What they have added to the proposed constitutional amendment has nothing to do with the Speech in Debate Clause. It has to do with undermining the EC's authority and making it less likely that the EC will seek to hear rather than settle cases.

But most of all, this addition to the proposed amendment is a clever way for the state legislature to look like it's pro-government ethics while good government groups do the work for them of opposing the constitutional amendment. Cleverness doesn't get any more fiendish than this. Congratulations should go to the attorney who thought of this. If only he or she would come forward and take the credit.

Click here to read blog posts about the recent history of the Speech in Debate Clause and legislative immunity in Rhode Island.

Robert Wechsler
Director of Research-Retired, City Ethics

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