Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 30

Monday, September 28, 2015

H. Philip West Jr.

Between 1986 and 2006, Rhode Island ran a gauntlet of scandals that exposed corruption and aroused public rage. Protesters marched on the State House. Coalitions formed to fight for systemic changes. Under intense public pressure, lawmakers enacted historic laws and allowed voters to amend defects in the state’s constitution.

Since colonial times, the legislature had controlled state government. Governors were barred from making many executive appointments, and judges could never forget that on a single day in 1935 the General Assembly sacked the entire Supreme Court.

Without constitutional checks and balances, citizens suffered under single party control. Republicans ruled during the nineteenth and early twentieth centuries; Democrats held sway from the 1930s into the twenty-first century. In their eras of unchecked control, both parties became corrupt.

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H Philip West's SECRETS & SCANDALS tells the inside story of events that shook Rhode Island’s culture of corruption, gave birth to the nation’s strongest ethics commission, and finally brought separation of powers in 2004. No single leader, no political party, no organization could have converted betrayals of public trust into historic reforms. But when citizen coalitions worked with dedicated public officials to address systemic failures, government changed.

Three times—in 2002, 2008, and 2013—Chicago’s Better Government Association has scored state laws that promote integrity, accountability, and government transparency. In 50-state rankings, Rhode Island ranked second twice and first in 2013—largely because of reforms reported in SECRETS & SCANDALS.

Each week, GoLocalProv will be running a chapter from SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, which chronicles major government reforms that took place during H. Philip West's years as executive director of Common Cause of Rhode Island. The book is available from the local bookstores found HERE.

Part 3
SEPARATION OF POWERS 1

30 

Retaliation (1996–97) 

Thomas E. Wright was afraid. I had never met the executive director of the Solid Waste Management Corporation before he came to my office at dusk with haunted eyes. “They’ve given me a choice,” he said. “Resign or be fired.” 

Three legislators sat on the trash agency’s nine-member board. Wright described the pressure he had felt to hire specific people, whether qualified or not. “For a long time I gave in to them,” he said wistfully, “probably too long.” He spoke of being coerced into hiring a young man named Joseph Rotella for a community relations position and then into promoting him to property manager. “In both cases,” Wright said, “I had to select him over qualified female applicants.” 

“And the women were better qualified?” 

“I thought they were. For the second position — managing houses we owned around the landfill’s perimeter — our job description required both a college degree and real estate license. Rotella didn’t have either. The promotion raised his pay about eight thousand a year.” 

“And you felt pressure?”

Wright nodded.

“From Vincent Ragosta?”

“Yes. That’s when I learned that Joseph Rotella was the nephew of Andrew Rotella, the vice chair of the Narragansett Bay Commission. I assume he’s close to Vinny Mesolella.” 

“Vincent Ragosta is Mesolella’s cousin,” I added. 

Wright nodded that he knew. “Family is family. Ragosta made it clear what he wanted.” 

This was January 1996. Beyond our windows, the last tints were fading from a winter sky. My office was growing cold. I asked if he had felt pressure from General Assembly members on the board. 

“From Rep. McCauley.” 

“Who represents this district,” I said. Although I seldom saw him there, Rep. John J. McCauley Jr. had a storefront office across Smith Street. 

Wright said he hoped McCauley had not seen him come and wondered if he were paranoid. “McCauley wanted me to hire one of his constituents, a guy named Kenneth Lyons, as a laborer. I told him we’d had a job freeze on laborer positions for five years. I thought that was the end of it, but McCauley kept calling, kept asking me to give Lyons an interview. And Ragosta started prodding me.” 

“And you hired him?” 

“In the end, I didn’t. It turned out that Lyons had a felony record that disqualified him for a license to operate bulldozers. I told him it was a Superfund site, and he would have to take a drug test. At that point, he bailed out.” 

Years earlier, I toured the state-of-the-art recycling facility that Tom Wright built. Machines and workers separated metals and glass of different colors. Environmental advocates thought highly of him. I asked what reason they would give for firing him. 

He shrugged. “They can always concoct something. I serve at the board’s pleasure.” 

I walked Tom Wright down our back stairs to the parking lot and wished him well, then plodded back up and wrote a verbatim. Wright had not asked me to do anything, but his experience illustrated the evils of legislative patronage in administrative agencies. 

His firing came a few days later. The Solid Waste Management Corporation board made its decision in closed session and would not let Wright defend himself in the public portion of the meeting. The trash agency’s lawyer, Robert G. Flanders Jr., said Wright was fired because Chairman Vincent Ragosta preferred “a more hands-on, proactive administration.” 

Afterward, Wright told reporters his side of the story, saying staff morale suffered when Ragosta insisted on the hiring of “at least five unqualified people” in the last year. Media attention zoomed in on Rep. John McCauley’s attempts to get a landfill job for Kenneth Lyons. Providence Journal reporter Bob Wyss discovered that Lyons had convictions in the last five years for assault, domestic assault, passing bad checks, resisting arrest, and possession of heroin. Telephone records showed that McCauley had made at least seven calls to Wright on Lyons’s behalf. “People call looking for help from me,” McCauley told Wyss. “If I can’t help, then what use am I?” 

I wrote to House Speaker John Harwood and Senate Majority Leader Paul Kelly, asking for a legislative investigation of improper hiring pressures at the Solid Waste Management Corporation, noting that Wright’s charges were “only the latest controversy in the SWMC’s history of hiring practices that appear dubious, improper, or illegal.” I added that it lay “within the oversight authority of the General Assembly to investigate.” But neither Harwood nor Kelly responded, and I restated those concerns in a second letter, which they also ignored. 

W. Edward Wood, who had served both as director of two state departments and as Gov. Bruce Sundlun’s chief of staff, blasted Wright’s firing. “In many ways,” Wood wrote in an opinion piece, “Tom Wright is an engineer’s engineer.” He added that Wright “absorbed the new programs without a hitch, never complained, made few mistakes, and took responsibility rather than running from it.” Wood praised Wright for his managerial virtues, including “absolute incorruptibility.” 

The sacking of Tom Wright laid bare the reality of legislative patronage on quasi-public boards. Family connections often trumped conscientious service. By their silence, Harwood and Kelly signaled that they would not embarrass their appointees. 

Less than two months after his firing, Tom Wright landed a top job in the Connecticut Resource Recovery Authority. 

 

James J. Malachowski held one of the riskiest posts in state government: he chaired the Public Utilities Commission (PUC). Bald, tall, and tough, he dared to thwart two leaders in the House, Vincent Mesolella and George Caruolo. Malachowski had also saved homeowners and businesses more money than they would ever know. Between 1984 and 1994, the Narragansett Bay Commission had proposed sewer rate increases of $33.3 million from its customers, but the PUC had blocked $10.2 million. 

I knew Malachowski but was stunned when he phoned confidentially for help. “I’m in an awkward situation,” he said. “I’m a utility regulator, and I’m about to block an incinerator contract the NBC really wants at Fields Point.” 

I asked how he could stop what sounded like a steamroller. 

He said the NBC needed a rate increase of $2.325 million to go forward with the multi-year, multi-million-dollar contract. “They haven’t done due diligence,” he said. “Their process is flawed. If we block the rate increase they’ve requested, they won’t be able to build.” 

I barely understood. 

“The awkward part,” he continued, “is that if I deny Mesolella his rate increase, he’ll go to House leaders, and they’ll slash my budget. I’m getting not-so-subtle signals that the House Finance Committee will cut our staff in half. We’ll block the rate increase, but it’s like inviting a punch in the nose.” 

Malachowski also had reason to fear George Caruolo, who convened a press conference early in 1996 to unveil his legislation aimed at deregulating electric utilities. From a podium in the House lounge, Caruolo announced that Rhode Island would be the first state to let consumers choose their energy suppliers the way they already picked long-distance phone companies. “The word ‘historic’ has been repeatedly used here to describe what we are trying to do,” he told the crowd of lobbyists, officials, and reporters. 

Caruolo’s bill was thick and studded with esoteric legalese that made dense reading: “the nonbypassable transition charge” and “net unrecovered commitments.” Its obtuse text contained a plan to compensate the Narragansett Electric Company and several small regional producers for surrendering their monopoly status. Electric utility companies would sell off their power plants and buy electricity from companies their customers chose. 

But what were these massive generating stations worth? After secret negotiations with executives of Narragansett Electric, by far the largest producer of electricity, Caruolo priced the power plants at $930 million. With charts and graphs, he called for consumers to cover up to three additional cents per kilowatt-hour over the next 25 years to pay the power companies for their “stranded costs.” He claimed that competition would more than offset that amount, allowing consumers to shave between 13 and 17 per cent from their electric bills. 

Few people knew enough to question Caruolo’s numbers, but a study group of utilities and consumers’ groups convened by the PUC a year earlier cried foul. Under the leadership of former Barrington Rep. Mary N. Kilmarx, the Rhode Island Electric Industry Restructuring Collaborative had been analyzing the data for months. Her group’s forty-six-page report challenged Caruolo’s estimate of $930 million in stranded costs as too much for the million people in Rhode Island to pay off, and she presented those data to the Public Utilities Commission. 

Brown University Economics Professor George Borts declared in an opinion piece that Caruolo’s bill would “transfer at least $1 billion of Rhode Island wealth to the electric power companies” and “effectively emasculate the Public Utilities Commission, replacing the existing commissioners with legislative appointees.” Moreover, he wrote, other deregulated industries — particularly airlines and trucking — had received no such payments. Borts disputed Caruolo’s analogy to telephone deregulation: “AT&T was not compensated when it wrote billions of dollars of assets off its books.” 

Within Caruolo’s Utility Restructuring Act of 1996 lurked a brazen assault on the Public Utilities Commission. Caruolo would oust three experienced commissioners appointed by several governors for staggered terms and bring in five novices, three appointed by legislative leaders. Instead of the current six-year terms, the new commissioners would serve only three-year terms, a change that would make them doubly vulnerable to political pressure. Other provisions would end the PUC’s authority over the Narragansett Bay Commission and exempt the quasi-public sewage agency from revolving door and other ethics requirements. 

Weekend television throbbed with college basketball playoffs, the start of March Madness. I found myself drafting an opinion piece that compared public utility commissioners to referees who have the thankless task of making tough calls. Caruolo’s bill, I wrote, would destroy their independence. I asked how would referees call a hotly contested game, “if they were subject to instant dismissal by power brokers in the box seats?” 

Throughout the spring, Jim Malachowski decoded the majority leader’s calculations on stranded costs. His testimony before legislative committees amazed me. Contrary to Caruolo’s promises, Malachowski predicted that the legislation would raise most electric bills, stall competition, and allow local utilities to reap windfall profits. 

On June 20, the Public Utilities Commission shattered tradition with a report to the General Assembly. Malachowski and his fellow commissioners declared Caruolo’s bill rife with “sweetheart items” that would help utilities and harm consumers. The PUC report deplored the fact that customers must compensate Narragansett Electric and other providers for existing power plants. Contending that the transition costs were excessive and had “no relation to stranded investments,” they dismissed the bill’s central formula as “fatally flawed.” 

Caruolo fired back: “This report is long on criticism and devoid of anything constructive. Is it possible that after all of this time they can’t say anything positive about this bill?” Meanwhile, Sen. William V. Irons, chair of the Senate Corporations Committee that would conduct hearings on the bill, welcomed the report. He told reporter Bob Wyss: “They are the most knowledgeable group on this subject in the state.” 

I never found out how Caruolo’s bill took its final form in the Senate Corporations Committee, which Irons chaired. The substitute left the three PUC commissioners in place but stripped them of their power to regulate public utilities, which their predecessors had held since 1969. The latest version created a new agency called the Retail Electric Licensing Commission to administer electric utilities. Three of its nine members would be appointed by the governor, three by the speaker of the House, and three by the Senate majority leader — the same as the Lottery Commission. Irons’s compromise allowed Malachowski and his fellow commissioners to retain broad regulatory authority over gas, electric, telephone, water, and pipelines. 

Caruolo’s Utility Restructuring Act of 1996 came before the Senate on a cool, showery August day. To assure passage, House leaders held hostage a high priority Senate bill to outlaw tobacco sales to children. 

Senators expressed their doubts. “What we are doing today,” declared Sen. John Roney, “is passing a bill that is opposed by all the people we hired to know and to represent us against the utility.” 

Sen. Michael Lenihan read a list of reasons why the bill would be bad for the state. He insisted that the technical language of the legislation would protect the Narragansett Electric Company and subvert “the principles of an open and competitive market.” 

In the end, only Roney, Lenihan, and two other senators voted against Caruolo’s utility legislation. Clerks stamped it as passed by the Senate. Irons carried it across to the House and handed it to Caruolo in exchange for the Senate’s hostage tobacco bill. 

 

Speaker John Harwood opened the 1997 legislative session by warning his colleagues from the rostrum that they would soon become the “punching bag for a chorus of reformers.” Framed by burgundy velvet drapes, he glanced up from his text and glared at me in the gallery. “Brace yourself for that experience,” Harwood urged. “We must all be prepared to explain that it is the legislature which is the heart and soul of government. We must remind our fellow citizens that the General Assembly has filled its central governing role during more than three centuries of Rhode Island constitutional history and tradition. We must be prepared, unfortunately, to have these truths ignored and twisted by naysayers and would-be reformers.” 

I stared back and absorbed the Speaker’s rage. 

The day before, Caruolo had published a letter to the editor. “The zealots at Common Cause,” he wrote, “have excelled at slandering the collective reputation of the General Assembly while they crusade to ban legislators from boards and commissions.” He added that he could not think of “a single instance in which a legislator was ever charged in any judicial or ethical forum, much less convicted, for malfeasance while serving on a state board or commission.” 

As much as they despised the campaign for separation of powers, Caruolo and Harwood had little leverage against Common Cause, but they used the Unclassified Pay Plan Board to retaliate against Jim Malachowski. The pay board’s transformation from an executive office for setting salaries to a hybrid dominated by legislators empowered legislative majority leaders to control top officials across state government. The buck no longer stopped on the governor’s desk. Accountability vanished. No one had greater power than those who set salaries for department directors, judges, and top regulators. The Unclassified Pay Plan Board was a perfect venue for high-stakes political deals. 

The pay board’s January 1997 agenda comprised a half-inch packet of obscure documents. Buried amid routine motions were raises of up to 13.9 percent for traffic court judges. Leo Skenyon, the tribunal’s administrator, would get an 8.7 percent mid-year increase, while Director of Transportation William Ankner would walk out with an 11 percent annual boost. The most shocking item on their agenda was a new job title and pay cut for Malachowski in a Public Utilities Commission that had been restructured under Caruolo’s Utility Restructuring Law. In place of Malachowski’s $94,123 salary, his proposed new position carried a pay range of $53,295 to $63,045.

No one could miss the public humiliation of a thirty-three percent pay cut. This shot at the PUC chief who had dared to challenge Caruolo would send shockwaves through state offices. The message was clear: Never cross legislative leaders. 

Months earlier, Gov. Almond had backed Malachowski’s critique of the Caruolo utility legislation, but now the governor’s director of administration announced that Malachowski’s job was “being restructured.” It baffled me that Almond had been bold in June but seemed ready in January to support slashing Malachowski’s pay. Why had Almond gone along with House leaders on what seemed a matter of principle? 

Despite overwhelming odds, Jim Malachowski refused to go quietly. “I set profit levels of companies that are traded on the stock exchange,” he told reporter Kathy Gregg. “I make decisions that affect every home and business in Rhode Island.” No changes in his duties, Malachowski added, could justify cutting an official’s salary during his term of office. That was against the law. 

The assault on Malachowski seemed to prove our point that the Unclassified Pay Plan Board had gone rogue. During my rounds at the State House, I spoke to as many of its members as I could. The four lawmakers on the board mouthed the leadership’s line that their hands were tied because Malachowski would be in a new position. “I hear you,” said Sen. John Roney. “I’m going to offer an amendment that will lessen Malachowski’s loss.” 

Only General Treasurer Nancy Mayer opposed the cut, and she was furious. “The fix is in,” she fumed. “The House leadership will make an example of Malachowski. People across state government will get the message.” She, Almond, and Malachowski were all Republicans. I asked her why the governor would go along with this charade. 

Mayer shook her head. “Beats me. I called his top people, but they won’t talk to me about it.” 

Beyond criticizing the “stranded costs” calculations in Caruolo’s electricity restructuring bill, Malachowski had committed a worse sin: publicly contradicting House leaders on a bill they really wanted. 

Malachowski mentioned several other moments when top figures in the House had pressured him. “There’s a case in litigation,” he told me. “Obviously, the details are confidential. All I can tell you is that House Policy Director Frank Pontarelli called to demand that we change our position on a lawsuit.” And Woonsocket Rep. Gerry Martineau — chairman of the powerful House Corporations Committee — had walked into the Public Utilities Commission with a trucking executive who had a case pending. “He was very clever,” Malachowski said. “Just sat in my office while the trucking guy made his case. No threats. ‘Only a courtesy to a constituent.’ The mere presence of somebody from the leadership was intimidating enough.” Martineau was the speaker’s appointee on the Unclassified Pay Plan Board. 

Malachowski had already written to Gov. Almond about Martineau’s intimidation. “Of all people,” said the beleaguered regulator, “the governor should push for an investigation.” 

I offered to challenge Martineau’s conflict of interest, and Malachowski agreed. I faxed a letter to all seven members of the pay board, urging them to address Martineau’s apparent conflict of interest and not to cast the second and final vote to cut Malachowski’s salary. “These are serious matters,” I wrote. “Rep. Martineau is a member of the Unclassified Pay Plan Board.” 

I also defended Malachowski for testifying against Caruolo’s 1996 Utility Restructuring bill. “Responsibility to raise such public questions lay clearly within Mr. Malachowski’s role as head of a regulatory agency,” I wrote. “Few others in the state have the expertise or access to the technical data.” I added that the pending cut in Malachowski’s pay would violate the ban on lowering the salaries of directors and judges during their term of office. 

Finally, I asked what message the Unclassified Pay Plan Board would send by publicly punishing Malachowski. 

 

I barely knew Margaret “Meg” Curran when Gov. Lincoln Almond nominated her on January 2, 1997, for a vacant seat on the Rhode Island Supreme Court. Curran had been editor-in-chief of the law review at the University of Connecticut Law School and graduated second in her class. When Almond served as U.S. Attorney for Rhode Island, he hired Curran as a federal prosecutor, and she became his chief appellate lawyer. He picked her from a list submitted by the Judicial Nominating Commission. 

Under the judicial selection compromise that RIght Now! accepted in 1994, the House and Senate would vote separately to confirm her. In preparation for what most thought would be a routine confirmation, she went to meet top legislative leaders. 

The House Judiciary Committee took up her nomination on a gusty, rainy day. I found an empty seat in the audience behind Curran, her husband, and their 8-year-old daughter, Margy. 

Committee members had received Curran’s file, including cover sheets from 152 briefs she had filed in federal cases. U.S. Supreme Court Justice Stephen Breyer sent an enthusiastic letter about her appearances before the First Circuit Court of Appeals while he served as chief judge, and a clerk read it into the record. I had never heard of a U.S. Supreme Court Justice supporting a judicial candidate in Rhode Island. 

U.S. Circuit Judge Bruce M. Selya came to testify about Curran’s work as his law clerk. “She has an ideal temperament to be a judge,” Selya said. “She is fair-minded and has an abiding intellectual curiosity. And among my colleagues on the Court of Appeals, she is regarded as one of the two or three best attorneys who regularly appear before us.” 

Sheldon Whitehouse, who had followed Almond as U.S. Attorney, also spoke enthusiastically of her work on appeals for the office, declaring that she would bring “a keen intelligence, a wealth of scholarship, and a strong record of appellate experience.” 

A host of others added to the chorus of praise. John “Terry” MacFayden had been on the list of five highly qualified candidates with Curran, but affirmed her enthusiastically. Asked if he had any misgivings about Curran’s lack of state court experience, MacFayden said he did not. 

Curran finally stepped to the witness seat, her unruly reddish hair gathered in a bun. In a low contralto voice, she promised to serve without any political agenda. “I would try to bring intelligence, respect, and compassion,” she said. “I recognize the awesome power of the law to affect people’s decisions and their very lives.” 

Then, in a scene that would reverberate through the state, eleven Democrats on the House Judiciary Committee began pummeling her with a single charge: she did not know enough about Rhode Island courts. 

Curran answered that appellate law worked the same way in state and federal courts. A constitution and the laws enacted under it were comprised of carefully chosen words. Findings of fact were contained in transcripts. Precedents were precedents. Lawyers on opposite sides presented their best arguments. Appellate judges sort through, listen, interpret, and finally decide. She sat stoically as her assailants railed against her. Her husband cupped his face in his hands. Curran’s mother picked up their daughter and carried her out of the hearing room. 

Rep. William J. Murphy, a trial lawyer from West Warwick, dissented. “I’ve worked with her,” Murphy said. “She is very qualified, and I can say she is excellent.” Two other Democrats, Mabel M. Anderson of Pawtucket and Mark B. Heffner of Barrington, also broke ranks to defend Curran, but her attackers overwhelmed them. Three Democrats and all three Republicans on the committee voted for Curran’s confirmation. Eleven Democrats voted against. 

“It’s a shame what happened,” declared Rep. Susan B. Iannitelli, of Smithfield. “Nobody testified against her. She was very strong in her interview with us. I was surprised at the vote.” 

In a newspaper story, John Harwood flatly denied orchestrating the public humiliation of Margaret Curran. “My attitude,” he insisted to reporters, “is let the committee decide what they think is right. As a matter of fact, go ask any member you wish. Go up and down. Call them tonight and ask them if I talked to them. I never talked to them.” 

Two days after the vote, a constituent of Johnston Rep. Alfred Russo Jr. phoned me at the office. She described calling Russo and quoted his response: “They made us vote like that.” 

She asked Russo who “They” were. 

“The House leadership,” he told her. “When I want something for the Town of Johnston, I have to go to them.” 

The House Judiciary spectacle galvanized public attention. In the Providence Journal, cartoonist Jim Bush showed a bunch of burly men in suits marching triumphantly away from the bludgeoned nominee. Another cartoonist, Don Bousquet, pictured a masked executioner labeled “House Judiciary” with a huge axe called “Curran Rejection” over a cowering voter. “This ain’t about qualifications,” the executioner roars. “Everybody needs to be reminded just who is running this state!!!” 

Columnist M. Charles Bakst followed up with a call to John Ryan, dean of the new law school at Roger Williams University, who told him that Curran had been “brutalized. If there’s such a thing as legislative rape, I would put it in that category. And for no reason whatsoever.” The dean declared that the House leaders and the committee had “done a gross disservice” to the people of Rhode Island. 

Before the House floor vote I sent a letter to each representative. “From close observation,” I wrote, “we are convinced that all five candidates presented by the Judicial Nominating Commission are highly qualified to serve as associate justice of the Supreme Court, and the House Judiciary Committee provided no contrary evidence.” Another volley of letters went from Rev. Jim Miller at the Rhode Island Council of Churches. 

On January 28, the day of the House debate, Providence Rep. David N. Cicilline, a Democrat, moved to confirm Curran, “notwithstanding the recommendation of the Judiciary Committee.” 

“Our rules,” retorted Majority Leader George Caruolo from his desk, “do not provide for debate on committee reports. A report has been given. The rules are that the committee chair speaks, the majority leader speaks, and the minority leader speaks. Then we vote.” 

Cicilline insisted: “There is no word in the House rules concerning the confirmation process. The public deserves a full debate.” 

Pawtucket Rep. Mabel Anderson, who voted for Curran in the Judiciary Committee, backed Cicilline. “The House has an obligation to vote on the candidate,” she declared. In her seventies, Anderson spoke her mind and loved to show her independence. “Accepting the recommendation of the Judiciary Committee is not the same as voting on the nominee.” 

From desks in rows that curved across red carpet, other representatives signaled that they wanted to speak, not merely vote the Judiciary Committee’s written report up or down. House leaders agreed to suspend the rules. 

Rep. Charlene Lima blasted the committee by alluding to Harwood’s persona as a hard-driving hockey player. “It was a cheap shot. If this were a hockey game, they would be in the penalty box.” She continued: “I looked at Margaret Curran’s papers, and she is superbly qualified. There wasn’t a word of negative testimony about her. The only negatives came from members of our committee. If we have a problem with the new judicial nominating process, let’s debate that issue in public but not take it out on this nominee.” 

Portsmouth Rep. Charles Levesque rose with microphone in hand. “I’ve been deeply troubled,” he began. “She has never appeared before any of our courts. She has never held the hand of any litigant in any of our courts.” Levesque scanned the room. “Many have spoken to me on behalf of Margaret Curran, but there are thousands of practicing attorneys who ask if she even knows where the Supreme Court is. How much does she know about practice of law in this state?” 

In the tiny block of Republican seats Rep. Scott P. Rabideau rose. He represented rural Burrillville and had cast one of six Judiciary Committee votes for Curran. “I was initially skeptical about this nominee,” he began. “When I got the committee package with her letters of reference, I called the people who wrote them. I called the state police to find how they did their report.” He said the answers swept away his doubts. 

“During the hearing,” Rabideau continued, “I asked Mr. MacFayden, who had also been in the running. He said Ms. Curran is highly qualified. Now that his name was out of running, he had no reservations whatever about her confirmation.” A wetlands biologist, Rabideau was rail-thin with a mischievous smile. “Then I asked Sheldon Whitehouse, who has worked closely with the nominee: ‘Does her lack of state trial experience in any way reflect on her ability?’ Whitehouse, who is a Democrat, said it did not. Then I asked Judge Bruce Selya, and he answered: ‘You may think she doesn’t have experience before Rhode Island courts, but don’t let that sway you. She has all the tools to be an excellent justice.’” 

From the gallery above, I watched casual conversations around the chamber. Few were listening to Rabideau; they knew how they would vote. 

“The issue for me,” declared Harold Metts of South Providence, “is the lack of minority representation on the Supreme Court. A highly qualified candidate of color, Superior Court Judge Rogeriee Thompson, was on the list from the nominating commission, but friends still appoint friends, and that’s what the governor has done.” He paused until a hubbub of private conversations subsided, and then continued, “In the hearing last week, I asked Mrs. Curran if she had attended functions in the minority community, and she answered honestly that she had not. Until a qualified minority person is appointed to the Supreme Court, I will continue to vote against Governor Almond’s friends.” 

Cranston Rep. Frank Montanaro, part of Harwood’s leadership team, served on the Judiciary Committee and had voted against Curran. “Let’s be clear,” he said, “only a small professional club came to speak on behalf of Curran, and the governor’s office really did nothing to advance her candidacy. Those who want this candidate haven’t done their homework. Nothing in the judicial selection statute made the Judiciary Committee into a rubber stamp.” 

“Let’s also be clear,” countered Mark Heffner, who had voted for Curran, “that we’re talking about an appellate court of last resort. The only real question should be: Who is the best appellate lawyer?” In his late forties, Heffner was balding and intense. “I’m a trial lawyer,” he added, “but there’s a certain temperament you need for appellate work, which is an isolated pursuit. Every witness thought Curran would be an ideal candidate, and I became convinced of the same thing.” 

West Warwick Democrat Timothy Williamson, vice chair of the Judiciary Committee, said he took offense at Don Bousquet’s cartoon in the Providence Journal. “I was offended to be portrayed as the executioner. Was Meg Curran a sacrificial lamb? Yes, she was, but that’s politics. Politics is always involved.” 

I listened from the gallery, almost embarrassed for Williamson. Why did he seem to delight in playing the buffoon? 

David Cicilline countered that voters had fundamentally changed the role of the legislature in choosing judges. “The question is not whether Meg Curran is my first choice. I’m not the governor, so it’s not my choice. The system has changed. She is highly qualified. I will vote to confirm her, and I hope many of you will, too.” 

Sixty-one Democrats voted to accept the Judiciary Committee’s recommendation not to confirm Curran. Among the thirty-six who voted against the committee’s report were fifteen Republicans and eighteen women. After the vote, Caruolo told reporters, “This woman is probably a delightful woman, and she’ll probably make a fine judge some day, but she’s not qualified at this time to go on the Supreme Court.” 

 

Only two days after the House rejected Curran, Gov. Almond was to deliver his State of the State address. The House chamber filled for the occasion: the entire General Assembly, judges in black robes, department heads, dignitaries, reporters, and crews to broadcast live on three commercial channels. Galleries above filled with lobbyists, friends, family, and ordinary citizens. 

Unlike his previous major addresses in the chamber, Almond did not release advance copies of his text. He marched into the House chamber behind a receiving committee and up onto the rostrum. With his mane of white hair, he towered over legislative leaders on either side. In fierce opening remarks he told of meeting with Harwood and Caruolo a week earlier and warning them that if the House rejected Curran for political reasons, he would not present his annual address in this chamber. With measured cadence Almond said he had changed his mind. He had decided to speak “from the village green and directly to the people.” 

He glared down at Caruolo behind his desk in the second row and branded Curran’s rejection “the Tuesday night massacre, or, as described in this chamber, ‘the sacrifice of a lamb.’” 

With his audience stunned into silence, Almond demanded of them: “What does the rejection of a qualified person say to the young people in our schools, particularly young girls, who are taught: ‘Work hard and you will succeed in any endeavor you choose?’” 

 

Spink Davis whispered to me on the phone that the real story behind Curran’s rejection by the House was the separation of powers. A retired lawyer who had served on the Common Cause board, he often had good information from reliable sources. “This is not public,” he told me, “and I only have it second-hand. House leaders asked her to pledge that she would ‘be safe on separation of powers,’ but she refused.” He said the story had come indirectly from Sheldon Whitehouse. 

I phoned Whitehouse about the rumor attributed to him. Had Harwood and Caruolo asked Curran whether she would “be safe” if separation of powers came to the high court? 

He was silent, then said: “I can’t say anything for publication.” 

“Not for publication,” I agreed.

“Absolutely not for publication?”

“Absolutely not for publication, at least, not until you agree.”

“I think you heard pretty well,” Whitehouse said. (During an interview nine years later, Whitehouse gave me permission.)

I phoned Joe Larisa, Governor Almond’s brainy executive counsel. “It’s worse than outrageous,” he groused. “We’re not choosing candidates for their positions on separation of powers or anything else.” 

“Do you think Harwood and Caruolo are asking nominees?”

“Absolutely. Meg wouldn’t agree to ‘be safe’ on the subject.”

“Are you going public with that?”

Larisa hesitated. “We can’t. It would make a bad situation immeasurably worse. It wouldn’t move us forward.”

I asked if the governor would still seek an advisory opinion on separation of powers.

“We’re committed to completing that process,” Larisa said, “but we can’t ask for the advisory until we have the fifth justice in place. Obviously, we hoped that would have been Meg.” 

 

David Cicilline and Charlene Lima, both Democrats, filed our first constitutional amendment to establish separation of powers on February 4, 1997. Its wording came directly from the People’s Constitution of 1841, which began with the single separation of powers clause that comprised Article V: “The powers of the government shall be distributed into three departments: the legislative, executive and judicial.” 

Now we proposed to add three sentences from the People’s Constitution that the victorious Whigs had rejected in 1842: 

The legislative, executive, and judicial departments and powers of government shall be separate and distinct from each other. 

No member of the General Assembly shall, during the term for which elected, hold or accept any appointive position or office in the judicial or executive department of state government, nor appoint another person thereto. No person holding any office in the judicial or executive department of state government shall be a member of the General Assembly while serving in such office. 

“It’ll never pass in this form,” Cicilline told me in a husky voice, “but I like its historical roots. I hope it reminds people what happened here in 1842.” 

I asked what House leaders would do to him and Lima for introducing the resolution. He laughed. “I can barely imagine, and maybe I’m a glutton for punishment. But this is both right and long overdue.” 

That same afternoon, a bipartisan group of four senators filed an identical amendment with their signatures at the Senate’s mahogany rostrum. Democrats J. Michael Lenihan and Rhoda E. Perry risked alienating their leadership, while Republicans John A. Patterson and Mary A. Parella had the full backing of Gov. Lincoln Almond. No one expected passage of this amendment soon, and all knew it would cost them.

I wondered if people across Rhode Island had any idea how high the stakes were. Despite what seemed to be blatant abuses of power, few people outside the State House seemed aware of our campaign for separation of powers. Two years of public effort had provoked backlash and retaliation, but no positive change. 

 

On Valentine’s Day, the Unclassified Pay Plan Board met in a colorless room in the new administration building, across Smith Street from the State House. No one on the board showed concern over my entreaty for them not to cut Jim Malachowski’s pay. As Sen. John Roney had promised, a revised agenda specified a less drastic pay cut for Malachowski. 

In what seemed like theatre of the absurd, Robert L. Carl Jr., Almond’s director of administration whom everyone called “Dr. Carl,” led the charge against the state’s top utility regulator. Carl announced that the old law made Malachowski responsible for regulatory and administrative duties of the Public Utilities Commission, but the revised law split those duties. “This is not an attack upon Jim Malachowski,” Carl said unctuously. “Frankly, many people were concerned that the PUC was a double-headed hybrid: at one time an advocate, at one time a regulator. The legislature redefined the Public Utilities Commission so that there would be a difference between administration and advocacy.” 

With his career on the line, Jim Malachowski sat alone, facing six stone-faced men who could destroy him and one peppery woman who had no power to protect him. “This is not about my pay,” he declared. “It’s not about my job. Utility regulation is a highly specialized field that requires technical knowledge and moral backbone. The law recognizes the need for independence by giving each commissioner a six-year term.” 

Malachowski managed to control his indignation: “I know from many hearings during the years that people want and need strong regulatory agencies. The governor has a duty to support administrative agencies against pressure from regulated industries. That’s not politics, it’s principle.” 

If the men of the pay board were embarrassed, none let it show. 

“Every one of you,” Malachowski declared, “knows that my duties increased under last year’s Utility Restructuring Act. I ask you to consider the ramifications of the vote you’re about to take. Your action today will send a signal throughout state government. I ask you not to send the wrong message.” 

Nancy Mayer interrupted him. “Mr. Malachowski,” she began, “you’re aware that Senator Roney has proposed an amendment that would lower your salary considerably less than the original recommendation. What do you make of that?” 

“With all due respect,” he replied, “the law explicitly prohibits the Unclassified Pay Plan Board from lowering salaries of department directors and judges during their term of office. Inquiring whether I would accept having my pay cut by twelve thousand dollars instead of twenty is like asking: ‘Do you want both of your legs cut off or one of your arms?’ ” 

Joe Larisa, Almond’s executive counsel, pounced. “I respectfully disagree with Mr. Malachowski,” he said. “I conclude, as the governor does, that the action proposed would not violate the statute. This board is not reducing pay of the Public Utilities Commission Chairman. The law enacted last year created two distinct positions. Mr. Malachowski will continue to fill only one of them.” 

Mayer, tiny by comparison with men around the table, challenged the governor’s lawyer directly. “Mr. Larisa, if you had the CEO of a firm under contract for six years and changed the contract, wouldn’t you have to buy out the contract? It seems to me a six-year appointment at set salary is an implied contract.” 

“The legislature,” Larisa replied dryly, “is entitled to tear up the contract and create different positions. The law protects department directors and judges from having their salary cut during their term of office. The chairman of the Public Utilities Commission is neither a department director nor a judge.” 

“People want to make this nefarious,” Carl added. “It is not. The General Assembly makes the law. Our job is to administer the law as it is written, not to make up new rules as we go along.” 

Mayer ridiculed the votes that these six male politicians were about to cast. “I have not heard one thing today to lead me to believe the responsibilities are diminished or that the salary should be lowered. Excuse me for trying to think logically, but why should traffic court judges make $80,000 a year when the salary for the person who oversees the state’s vast and complex utility industry is cut to $71,790?” 

The final vote was six to one. Only Mayer’s vote signaled the absurdity of the pay board’s action. 

Malachowski did not go quietly. “I think it’s obvious what went on,” he told reporters after the meeting. “We have a history in this state where regulatory agencies have not been strong enough. The banking crisis was partly due to regulators not standing up and speaking out. I think that’s the core issue here today: whether or not you want strong, independent regulatory agencies. I am disappointed that the governor has turned his back on that and ignored these issues.” 

As I walked the half-mile back to our office, a street vendor selling balloons and red roses reminded me that it was Valentine’s Day, the anniversary of a famous Mob massacre in Chicago. I remembered vaguely that Al Capone’s underlings had donned police uniforms and executed rival mobsters while their boss basked in Florida sunshine. Our Valentine’s Day massacre had no machine guns or blood-spattered walls, but bore its own grim finality. Jim Malachowski could still breathe and talk, but the assault left him no way to lead the Public Utilities Commission. Why had Almond excoriated House leaders for trashing Meg Curran but allowed his subordinates to assault Malachowski with bureaucratic doublespeak? Had Robert Carl negotiated some Faustian bargain between the governor and speaker? 

H. Philip West Jr. served from 1988 to 2006 as executive director of Common Cause Rhode Island. SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, chronicles major government reforms during those years.
He helped organize coalitions that led in passage of dozens of ethics and open government laws and five major amendments to the Rhode Island Constitution, including the 2004 Separation of Powers Amendment.

West hosted many delegations from the U.S. State Department’s International Visitor Leadership Program that came to learn about ethics and separation of powers. In 2000, he addressed a conference on government ethics laws in Tver, Russia. After retiring from Common Cause, he taught Ethics in Public Administration to graduate students at the University of Rhode Island.

Previously, West served as pastor of United Methodist churches and ran a settlement house on the Bowery in New York City. He helped with the delivery of medicines to victims of the South African-sponsored civil war in Mozambique and later assisted people displaced by Liberia’s civil war. He has been involved in developing affordable housing, day care centers, and other community services in New York, Connecticut, and Rhode Island.

West graduated, Phi Beta Kappa, from Hamilton College in Clinton, N.Y., received his masters degree from Union Theological Seminary in New York City, and published biblical research he completed at Cambridge University in England. In 2007, he received an honorary Doctor of Laws degree from Rhode Island College.

Since 1965 he has been married to Anne Grant, an Emmy Award-winning writer, a nonprofit executive, and retired United Methodist pastor. They live in Providence and have two grown sons, including cover illustrator Lars Grant-West. 

This electronic version of SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006 omits notes, which fill 92 pages in the printed text.

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Related Slideshow: Rhode Island’s History of Political Corruption

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