making local government more ethical

Legislative Immunity in Rhode Island -- A New Court Decision

I hadn't realized it, but two weeks ago Rhode Island Superior Court Judge Francis J. Darigan dismissed a state ethics commission case against the state's former senate president, William V. Irons, due to legislative immunity. Like the Louisiana decision, this one involved a basic conflict of interest - whether Sen. Irons should not have voted on a bill that gave financial benefits to a company for whom he worked.

The Rhode Island "Speech in Debate Clause" is very similar to the U.S. Constitution's Speech or Debate Clause: "For any speech in debate in either house, no member shall be questioned in any other place." This has been interpreted by the Rhode Island Supreme Court (Holmes v. Farmer, 475 A.2d 976, 981 (R.I. 1984)) to include any legislative activity, following U.S. Supreme Court precedent.

Rhode Island's ethics commission and ethics code were created pursuant to a constitutional amendment in 1986, and the EC argued that, therefore, its jurisdiction over legislators carved an exception in their legislative immunity. Judge Darigan disagreed, arguing that, with constitutional provisions, it is important to preserve two apparently conflicting provisions wherever possible. He also pointed out that there was nothing explicit in the ethics provisions or in discussions about the constitutional amendment whereby legislative immunity was overriden.

But the decision says nothing about how the creation of an ethics commission affects the separation of powers argument that is central to the purpose of the Speech in Debate Clause, as the decision describes it. There is no doubt that the judicial and executive branches do not have jurisdiction over legislative activity, but the EC is neither judicial nor executive. It has a special position in government, and its purpose is not to deal with the content of any activity, but only with the public goal of preventing conflicts of interest from affecting the public trust, especially through voting. Everyone involved in creating the ethics commission and code knew that recusal from voting is a central element of government ethics.

The decision also says nothing about the fact that the issue is not how the senate president voted, but the fact of his voting when he had a conflict. The Speech in Debate Clause is supposed to protect the public's right to have its representative vote freely, but the public decided that its representatives could not vote, not freely but at all, if they had a conflict. This effectively has nothing to do with the Speech in Debate Clause.

This situation is very different from what is happening in Massachusetts, as discussed in my last two blog entries. There, the speaker of the house refuses to respond to the EC's subpoena. In Rhode Island, the senate president resigned when first questioned about his ties to two companies at the center of a scandal that ended up with the conviction of two other state senators. Sen. Irons acted more responsibly, and one could argue that he has paid his dues, and that it was not worth the while of the EC to pursue the matter further. Federal prosecutors recently announced that they will not pursue influence-peddling charges against Sen. Irons.

It's also worth noting, in light of my suggestion in the last blog entry that people vote out the speaker of the Massachusetts house, that Rhode Island voters did vote out the senate president who replaced Sen. Irons and who recently was fined $12,000 by the EC for ethics violations. They also voted out the chair of the senate finance committee, in a primary. This has surely sent a message more powerful than any fine.

For background information, see the Ethics Commission's brief and the following articles from the Providence Journal:

Ethics Commission Brief

Article on Superior Court decision regarding the EC's jurisdiction over Sen. Irons
Ramifications of the Superior Court decision
Criminal charges dropped against Sen. Irons
An historical look at Operation Dollar Bill, of which this matter is a small part

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
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