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Got ethics?
After last year's meltdown, the Rhode Island Ethics Commission faces the future with a new director. But an ongoing war of words reflects clashing views about the commission's mission
BY IAN DONNIS

An illustration of Don Quixote seems like an appropriate image for the man who faces the challenge of restoring the battered reputation of the Rhode Island Ethics Commission. But Kent A. Willever, who became the commission's director after his predecessor was unceremoniously sacked last April, says the placement of the decoration in his office reflects just an uncharacteristic bit of whimsy. "I had been given so much advice when I was first getting ready to take over this office, about how difficult it was going to be, like tilting at windmills," Willever says. "But I said, `I'm not crazy, I'm not like Don Quixote.' I just hung it on my wall more as a conversation piece than anything else."

Willever, 57, boasts strong credentials, including experience as the chief judge for the Navy and Marines Appellate Court in Washington, DC, and he speaks with enthusiasm about his goals and staff. Even the commission's fiercest critics, who thought it would be difficult to hire an energetic leader after the firing of Martin Healey, have some kind words for the new director.

Still, it's clear that Willever and the commission have their work cut out for them. The Ethics Commission, which was created by citizens during a 1986 constitutional convention, is supposed to be the strongest such state agency in the nation. Over the last 18 months, though, the commission gutted the state's zero-tolerance policy prohibiting gifts to public officials, fired Healey after he hired an out-of-state lawyer to investigate complaints against three commissioners, and -- in the view of critics -- sidestepped a complaint against House Speaker John B. Harwood for representing clients as a private lawyer before state agencies.

More than eight months after the height of the controversy, a war of words continues to flourish. Boosters of the Ethics Commission's new administration, including Frank J. Williams, chief justice of the state Supreme Court, blame the situation on Healey, a former federal prosecutor viewed by good government groups as an aggressive ethical watchdog. Common Cause of Rhode Island and editorial writers at the Providence Journal, meanwhile, ascribe responsibility for Healey's dismissal to Williams. They also fault Governor Lincoln Almond and legislative leaders for neutralizing the commission, changing the nine-member panel from an occupationally diverse group to a pliable panel with a concentration of six lawyers, some with political connections.

Willever, who started on the job in August, brushes aside suggestions that the commission has been made into a toothless watchdog. "Quite frankly, if I thought it was ineffective, I would not have come," he says. When it comes to restoring the commission's long-term credibility, "I saw it as a challenge, but I saw it as a workable challenge." Willever describes the panel as a dynamic group, pointing to the filling of key positions after years of understaffing, the addition of two new commissioners (both non-lawyers, lowering to five the number of lawyers on the commission), and pending plans for the addition of two other new commissioners. His short-term goals, after the commission cut down a backlog of advisory opinions, include expanding educational outreach efforts and raising the compliance of public officials in filing financial disclosure forms from 60 percent to 80 percent.

There are others, though, who believe that the Ethics Commission's recent difficulties will exact an ongoing toll -- a point suggested by the intensity with which two factions continue to debate last year's meltdown.

In a January 2 editorial, the Journal noted how Healey was fired after Williams published an op-ed in the paper and lamented the perception that the state's political establishment derailed the investigation of complaints against three members of the commission. Vincent A. DiMonte, president of the Rhode Island Bar Association, fired back with an op-ed less than a week later, decrying the Journal for "inexplicably accept[ing] Mr. Healey's version of the facts, even though Chief Justice Williams has discredited this version."

There's a similar lack of agreement when it comes to the outlook for the Ethics Commission's future. Williams and the Almond administration express confidence about the commission's future under the leadership of Willever. Common Cause and Operation Clean Government, however, cite a need for concrete reforms, such as opening the appointment process of commission members to public scrutiny and mandating the occupational diversity of commission members, to reduce the impact of political influence.

In a state where residents have no small amount of ambivalence about public corruption, it's safe to assume that most people have been left with, at most, a vague sense of the ethics issue as another prototypical Rhode Island political quagmire. Ultimately, though, the conflict reflects competing visions when it comes to the policing ethical conduct by public officials.

As Darrell West, a political science professor at Brown University, puts it, "There's plenty of blame to go around on all sides, and I think the problem reflects the different perceptions of what an Ethics Commission should be doing. I think the people in the political establishment have a stripped-down model in mind, where the commission simply enforces existing statutes, and the reformers have a much more comprehensive model, where the Ethics Commission fights for good and justice, which involves issuing new regulations, aggressively enforcing the law, and really pushing the boundaries of ethics enforcement."

The debate "really cuts across every type of issue that comes before government," West adds, "and I don't think people should be surprised, because we have a part-time legislature. There are always going to be conflicts when people have to earn a living on the side," raising the prospect of lawyer-legislators such as Harwood representing private clients before state agencies.

Perhaps we shouldn't be surprised. Still, some of the Ethics Commission's actions over the last 18 months -- such as the crippling, against public opinion, of the zero-tolerance gift ban -- hardly seem like what Rhode Islanders had in mind when they backed the 1986 constitutional amendment, calling for public officials to "adhere to the highest standards of ethical conduct, respect the public trust . . . [and] avoid the appearance of impropriety," that created the commission.

THE ZERO-TOLERANCE gift ban was controversial ever since it was adopted in 1998. Although some observers, like H. Philip West Jr., the executive director of Common Cause of Rhode Island, believe that such a strict standard is appropriate in Rhode Island, critics say it inhibited public officials from accepting coffee, sandwiches, or other minor considerations in the course of legitimate activity. Richard E. Kirby, a Providence lawyer who serves as the Ethics Commission's chairman, talks about how Governor Lincoln Almond couldn't accept hospitality from the management of the New England Patriots when he was trying to lure the team to Rhode Island.

The thing is, not all gifts are equal. It's one thing for a legislator to accept a complimentary lunch during a seminar on economic development, for example, and quite another for a lawmaker to be wined and dined by lobbyists at the Capital Grille. It comes down to questions of access and influence, and well-heeled interests are able to promote their causes in ways that can't be matched by ordinary citizens. Asked about this, Kirby says, "I don't think the Ethics Commission is here to correct socioeconomic inequality."

Dozens of people, including representatives of the League of Women Voters, Operation Clean Government, Common Cause, the Rhode Island State Council of Churches, urged the commission not to do away with the zero-tolerance gift ban when it considered the issue. In May 2000, the commission nonetheless voted, 5-4, to allow those covered by the code of ethics -- elected and appointed officials, as well as municipal employees like police officers and firefighters -- to accept gifts valued up to $150, with an aggregate value of $450 per year, from an unlimited number of individuals. (Municipal employees are still bound by the tighter restrictions in those communities that have them.) And although lobbyists are supposed to report their lobbying expenditures, watchdogs see this as a highly unreliable form of disclosure.

Even though he was among those who felt the zero-tolerance ban was overly stringent, Mel Zurier, then the chairman of the Ethics Commission, believed the new limits were much too large. Voting with the minority in May 2000, Zurier condemned the vote as the commission's Dredd Scott case. The comparison, invoking a 19th-century case that seriously damaged the credibility of the US Supreme Court, proved prescient.

Common Cause quickly filed an ethics complaint against Thomas D. Goldberg, contending it was a conflict of interest for Goldberg -- the brother and law partner of Robert Goldberg, one of the state's leading lobbyists (as well as a former Senate minority leader and the husband of Justice Maureen McKenna Goldberg of the state Supreme Court) -- to participate in a vote that could benefit his brother. Operation Clean Government weighed in with complaints alleging conflicts against Goldberg, Zurier and commissioner Robin L. Main.

Healey then hired Daniel Small, a former federal prosecutor from Massachusetts, to investigate the complaints against the three commissioners, but the high cost of Small's services sparked the ire of some commission members. Thomas Goldberg also challenged Small's right to practice law in Rhode Island. Thickening the plot, Healey and chief justice Williams, who was a Superior Court judge at the time, offered conflicting accounts of conversations they had about the subject. Healey, now working as a lawyer for the US Securities and Exchange Commission in Boston, says there were numerous instances in which an out-of-state lawyer had served as a visiting attorney without petitioning the state Supreme Court. Williams, however, says Healey should have known that Supreme Court approval was a necessary step for Small's entry into the case.

Although Small found probable cause in the complaint against Thomas Goldberg, the commission dismissed Small, dropped the complaints against the three commissioners, and fired Healey within weeks after an op-ed piece by Williams, headlined "Ethics flap is Mr. Healey's fault," was published in the Journal in March 2001. Critics, who believe that Williams's op-ed piece was tantamount to a call for Healey's dismissal, see the entire situation as the culmination of years of efforts by Almond and legislative leaders -- who appoint the members of the Ethics Commission -- to render the group ineffectual and undo the gift ban.

Other observers, though, like Joseph S. Larisa Jr., Almond's chief of staff, fault Healey for leaving staff positions vacant, and returning more than $100,000 to the state budget, to pay for Small's five-figure investigation. Defending Almond's appointments to the commission, Larisa adds, "Kent [Willever], by all accounts, has been doing a wonderful job. What the governor was concerned about was getting someone with credibility, not a zealot. Just looking at how the commission has operated under his tenure over the last few months has been a refreshing change."

Williams says his op-ed was necessary to defend the Supreme Court against claims made in a Journal editorial about the high court's rejection of Small's right to practice in Rhode Island. When it comes to the Ethics Commission's difficulties, "the problem was internal," he says, citing pre-existing tension between Healey and commission members. "The problem was the executive director and a lack of leadership."

IN FEBRUARY 2001, the Journal reported that Harwood had represented four cases as a private lawyer before two state agencies, the Department of Environmental Management and the Department of Business Regulation. Although the speaker maintained that his conduct was permissible, lawmakers were typically prohibited from handling cases before state agencies over which the General Assembly has oversight, and Operation Clean Government filed an ethics complaint against Harwood.

Consideration of the ethics complaint against Harwood was delayed when seven of nine board members initially recused themselves, citing potential conflicts. It wasn't until November that the commission took up the issue, deciding that it lacked jurisdiction because of a case involving a Massachusetts lawyer named Steven E. Ferrey, in which the state Supreme Court indicated that it has sole authority over the practice of law in Rhode Island. This was despite a recommendation by Katherine D'Arezzo, the commission's staff attorney, that a case involving Harwood's representation of a client before DEM merited authorizing "completion of a full investigation."

Kirby says the board debated the recommendation before making their decision on the basis of Ferrey. "The consensus was that the Supreme Court had spoken in this case and we weren't going to go back to the Supreme Court," he says. The commission is looking, he says, at the ramifications of the decision and how it might apply to other cases.

Harwood, who didn't return calls seeking comment, recently told WPRI-TV's (Channel 12) Newsmakers that Operation Clean Government's complaint was "reckless." Citing the Supreme Court decision, he said he feels free to make appearances as a lawyer before state boards and commissions. "I would consider it. There is no prohibition at all," he said, adding that he would not appear before the Lottery Commission or similar groups because he appoints some of the members. After previously being buffeted by negative publicity, the dismissal of the ethics complaint represented a decisive reversal of fortune for Harwood.

To critics, though, the dismissal represented an abdication of the Ethics Commission's responsibility. "My biggest criticism was in the Harwood case. They never really dealt with the question of whether John Harwood was in a conflict of interest," says Donald Carcieri, a Republican candidate for governor. "They basically just punted." Carcieri believes the issue needs to be further clarified, adding that when it comes to policing the General Assembly, the Ethics Commission "might as well fold up their tents, because we have a large percentage of legislators who are lawyers."

As the Journal's Jon Rockoff pointed out in a January 13 story, the Supreme Court ruling in Ferrey -- or at least the Ethics Commission's interpretation of it -- could effectively exclude lawyers who hold public office from the commission's oversight. Willever, however, questions this, noting that lawyers do a lot of work outside the practice of law that has nothing to do with their private practice. "I would say the jury is still out, but very clearly we still maintain jurisdiction over lawyers unless specifically involved in the practice of law," he says. "In that part I still have a question."

Phil West believes that the Ethics Commission has essentially given the go-ahead for lawyer-legislators, including the speaker, to represent private clients before state boards and commissions. "In all of those cases, the result, I think, will be that decisions will be politicized," he says, "depending on who the counsel is for the private client."

IN THEORY at least, it should be relatively easy for the Ethics Commission to regain its credibility, according to Martin Healey: "The commission has to have a compass and it has to have a backbone." To be credible and effective, he says, "you need both of those things, and if not the outright support of the political establishment, at least acknowledgment by the other political institutions in the state that the constitutional amendment passed by the people in 1986 is legitimate." He hastens to add, however, that in some respects, "I think that's never been accepted by the political institutions in the state -- that the Ethics Commission is a legitimate political institution."

Facing pressure from at least some quarters of the establishment, of course, comes with the territory. As Healey says, "the regulated never like a regulator." Healey, who was greeted like a returning hero when he was presented with an award during Common Cause's annual meeting in November, says Williams's claim that he was responsible for the Ethics Commission's problems are "equal parts silly and naïve."

As the commission faces the future, there remains a sharp divide in what different people see as necessary for the group to regain a reputation as an effective and credible watchdog. Some, like Kirby, who succeeded Zurier as the Ethics Commission's chairman in September, believes time is on the commission's side. "I think the outlook is great," he says, describing the dedication of commission members -- who, although they're supposed to be paid $100 per day of meeting, up to $6000 a year, have gone uncompensated since 1991 because of a lawsuit -- and the panel's renewed momentum. "It's going to take time for people to understand that we're not going to back down from issues that are controversial. We will make the difficult decisions."

The composition of the commission remains in flux. Thomas Goldberg remains on the board even after his appointment expired in 2000. House Minority Leader Robert A. Watson (R-East Greenwich), who has responsibility for nominating Goldberg's replacement, says he delayed the process because Goldberg deserved the opportunity to clear his name against the ethics complaints, and Watson describes as imminent his plan to submit a list of five nominees to Almond. A replacement also needs to be selected for Zurier, who resigned last fall.

Although Willever's background is impressive, "It's really impossible to judge whether the commission has turned the corner," says Brown professor Darrell West, "although I'm encouraged that the last appointments have been people who were not lawyers and outside the political establishment. It gives me some hope that there may be effective enforcement."

If the commission is serious about restoring its image, revisiting the gift ban would be an obvious place to start. A bill backed by state Representative David Cicilline (D-Providence) seeks to restore a more stringent standard and address concerns by allowing some exceptions. Short of this, an effective mechanism for publicly reporting gifts to public officials remains a good idea.

Common Cause's West has called for other reforms would enhance the Ethics Commission, such as establishing criteria for commission members; creating a process for public scrutiny and comment on the qualifications of nominees prior to their appointment; restricting by law the number of commission members who can be of the same profession to not more than two; and explicitly prohibiting the appointment of commission members who are business associates of registered lobbyists. But even though some defenders of the status quo see merit in some of these recommendations, there appears to be little backing for putting teeth into these measures. West says the absence of such reforms leaves the Ethics Commission susceptible to undue political influence.

Asked about the inherent lack of political support for a group that, like the Ethics Commission, polices conduct by public officials, Willever says, "I think the tension and the balance is something that's needed. I see it as a healthy tension." Adds D'Arezzo, the commission's staff attorney, "We're moving forward, and we want to put the bad publicity and the trials and tribulations of the last 18 months where it belongs -- in the past. We have a lot of important work to do."

So it goes, as Willever mulls the impressive view of Smith Hill offered by his eighth-floor office on Fountain Street in downtown Providence. "I look at the Independent Man every single day," he says, referring to the iconic figure atop the State House, "and that Independent Man is reflected here." It's a noble and appropriate sentiment. The difficulty, as some would say, is that an independent-minded director hardly guarantees an effective Ethics Commission.

Ian Donnis can be reached at idonnis@phx.com..

Issue Date: January 18 - 24, 2002