A way to close the ethics loophole
In 1986 Rhode Island voters approved a constitutional amendment to require that elected officials and public employees adhere to the highest ethical standards of public service.
In a 2009 ruling in a case involving former Senate President William V. Irons, the Rhode Island Supreme Court effectively exempted members of the General Assembly from any penalty by the state Ethics Commission for ethics violations relating to their core legislative acts or duties.
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 for legislation where there might be a clear conflict of interest. Since this decision, members of the General Assembly can literally author and vote in favor of legislation which directly benefits themselves without fear of prosecution or penalty by the state Ethics Commission. This “legislators’ loophole” is unacceptable. Legislators, like every other elected official and public employee overseen by the Ethics Commission, should be subject to the state Code of Ethics as it relates to their core legislative duties.
Over the years, constitutional amendments have been proposed to close this glaring loophole, but none have survived the legislative process. While there may have been some who may have opposed these amendments for self-serving reasons, the oft-repeated reason cited for opposing the amendments was that such amendments could tread on a legislator’s venerated right of “free speech” in the exercise of his or her core legislative duties.
This session, I have sponsored a compromise amendment, Senate Resolution 2014-S 2824, that preserves free speech (debate and argumentation verbally and in writing) but also restores the jurisdiction of the Ethics Commission as it relates to conflicts of interest in matters such as proposing legislation and voting.
The RI Constitution (ARTICLE IV, Section 5) currently states that “for any speech in debate in either house, no member shall be questioned in any other place.” To that I propose adding: “except by the Ethics Commission, provided that members of the General Assembly shall be free, without question or penalty, to express an opinion or engage in debate, verbally or in writing, relative to any matter within their core legislative duties.”
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.
My amendment also clarifies that the Ethics Commission has jurisdiction to adjudicate ethics violations. Further, it reinforces the constitutionality of the pre-existing stakeholder process for selection of members to the state Ethics Commission.
I believe that my Ethics Amendment proposal represents a golden opportunity to finally close the “legislators’ loophole.” Indeed, 22 senators (including myself) out of a chamber of 38 have signed onto this amendment. Moreover, the resolution has won the support of Common Cause, the Ethics Commission and the RI Attorney General.
In recent weeks, we have heard much discussion about the need to focus our state’s attention on economic development. As someone who agrees with this sentiment, I am convinced that economic development must go hand-in-hand with restoring the people’s trust in their government. If the people do not trust their leaders, it becomes very difficult to lead in general. Indeed, in a recently released Gallup Poll, Rhode Island residents ranked the Ocean State second from the bottom in how much they trust their government to handle their state problems.
If perception is reality, we need to rebuild that trust in order to lead our state out of our current economic doldrums. The General Assembly’s passing of one single measure – the Ethics Amendment – would demonstrate our state leaders’ willingness to begin to restore some measure of that trust.
(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)