Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 22
Monday, August 03, 2015
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.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTH 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 2
JUDGES AND LAWMAKERS
22
Empire of Cronies (1993)
On July 25, 1993, the Providence Sunday Journal landed on our porch with a thud. A banner headline burst from the front page: “THE MAKING OF AN EMPIRE: Chief judge, top clerk preside over network of high-priced patronage.”
The expose by Tracy Breton, Dean Starkman, and John Sullivan began with the steamy July day seven years earlier when Thomas F. Fay became chief justice of the Rhode Island Supreme Court. Speaker Matthew J. Smith had overseen the impeachment of Chief Justice Bevilacqua for his continuing Mob connections. After Bevilacqua resigned, Smith led the Grand Committee in electing Fay as chief justice and presided over the swearing in.
Smith and Fay were friends, confidants, allies, and business partners. Eighteen months after Smith made Fay chief justice, Fay returned the favor by picking his mentor for the top administrative post in the state court system. At the same time Smith continued to run the Unclassified Pay Plan Board, which bestowed a series of raises that made Fay — five years into the Fay-Smith judicial administration — the highest-paid state supreme court chief justice in the United States.
The investigative team had scoured public records and tracked secret favors. They reported that Smith had become the fourth-highest-paid state court administrator in the nation, earning more than his counterpart in the far larger court system of neighboring Massachusetts and only $5,000 less than the top court administrator in California, a state with thirty times Rhode Island’s population. “The Making of an Empire” showed how Smith and Fay turned the court system into a patronage mill. They awarded jobs with high salaries to “ex-politicians and their relatives,” driving the judiciary’s budget dramatically upward. During five years Fay served as chief, the Supreme Court’s spending spiked more than 250 percent, from $5 million to more than $17 million per year.
Rep. Anthony J. Carnevale Jr. had worked at Smith’s behest to deliver Grand Committee votes for Fay. Though Carnevale was woefully unqualified for a judgeship, his old allies in the General Assembly quietly passed legislation establishing a new “general master” of the Superior Court. Though the duties were judicial, there was no need to negotiate for an appointment by the governor or confirmation by the Senate. The law empowered Chief Justice Fay to appoint, and he named Carnevale.
The Journal’s investigators reported that many other Smith-Fay loyalists had landed lucrative jobs, and the General Assembly shoveled cash into the courts. The Supreme Court budget swelled an average 37 percent each year. From 1988 to 1993 its staff ballooned from 88 to 158.
The investigative team reminded readers that Smith — while he was speaker — had appointed both the chairperson of the House Finance Committee that set the court system’s budget, Rep. Robert Tucker, and its vice chair, Rep. Robert V. Bianchini. The expose noted that most court personnel fell under the jurisdiction of the Unclassified Pay Plan Board, which Smith chaired and where Bianchini served. The pay board’s meetings were “held bimonthly at various locations at the call of the chairman. Its records were scattered, incomplete, and indecipherable.” A sidebar listed new hires with their positions, salaries, and raises over two years. All had potent political connections. Of the fifteen people who had landed jobs, the reporters tracked several down and asked about how they applied. Former Rep. Louis M. Cioci said he had spoken twice with Fay. “I went to see the chief justice personally,” he said. “I hand-delivered the resume and talked to him about it.”
“Patronage has a corrosive logic all its own,” the blockbuster declared. “Inherently unfair, it coddles incompetence and discourages achievement. One favor requires another, then another. Slowly, the organization is compromised and morale is poisoned. In a court system, it is doubly damaging.”
The three reporters had asked to interview Chief Justice Fay but were told they must submit written questions, which he would answer in writing. When they asked if political influence had played any part in hiring fifteen individuals whom they named, Fay replied, “The policy of the courts is to hire the best qualified individuals. Prior experience in the public sector is not a liability or a preclusion to hiring.”
The reporters then asked if any individuals without personal or political connections to top administrators had been “recruited and/or hired.”
Fay again answered that court procedures were “consistent with good hiring practices in the private sector . . . . They were not designed, however, to create a system of ‘reverse discrimination,’ wherein qualified candidates are automatically eliminated from consideration simply because they had previous public service experience or knew an individual in public service.” In response to a question about pay levels, Fay noted that the Unclassified Pay Plan Board was responsible and that the court salaries “track the salaries of similar positions throughout state service.” The written Q&A made dull reading but revealed Fay’s defensiveness.
The patronage scandal engulfed Fay and Smith like a rogue wave. Before the pair could regain their footing, a second breaker tumbled them again. Reporters Starkman and Sullivan reported that the chief justice and the court administrator had been using bar exam fees as a secret slush fund that violated state law. Chief Justice Bevilacqua had begun the fund when his court charged aspiring lawyers $50 to take the bar; Fay raised it to $200 and began generating $40,000 or more per year. Auditors swooped in, and newspaper photos showed checks emblazoned with Smith’s serpentine signature.
Most expenditures from the fund seemed mundane: $275 for a bus to a Red Sox game at Fenway Park, $268 for beer and wine, and $4,900 for a public opinion poll. Others seemed personal, such as the tuxedo Fay rented to receive an honorary degree. When Smith filed a voucher for reimbursement as a court expense, the state purchasing agent refused it and Smith paid for the tux with a check labeled “R.I. Supreme Court Special Account.” In 1990, Fay had commissioned a full-length portrait of himself that was paid for with $11,500 from the special account, and in 1992, Smith wrote a check for $588 to an auto body shop to repair a dent in his car. Some payments might have seemed trivial, but all were processed through illegal accounts. When auditors tallied the illegitimate disbursements over five years, the total swelled to $175,000.
On August 11, after thirteen years as the dominant player in Rhode Island politics, the jaunty leprechaun everyone called “Matty” signed a letter of resignation and Smith walked out of public life. The next day, House Minority Leader Wayne L. Salisbury and Rep. Bruce J. Long charged that Smith had made “personal and private” use of state money. Long also filed a complaint against Chief Justice Fay with the Commission on Judicial Tenure and Discipline.
Two days later justices of the Supreme Court issued a report that blamed Smith for failing “to apply good accounting principles and appropriate guidelines” in his expenditures. In what looked like an effort to shield Fay, they added, “Neither the court nor the chief justice supervised routine management of the fund including deposits and expenditures from it.”
House Republican leaders renewed their attack on Fay, with Salisbury telling reporters the chief justice had disregarded the laws he was sworn to uphold. Long spoke of “impeachable offenses.” Each news story prompted a flurry of political pronouncements as radio talk shows amplified the details, and the uproar spread to the farthest corners of Rhode Island.
After refusing an interview with the Providence Journal reporters, Fay went to the WPRO-AM studio for an on-air interview with Mary Ann Sorrentino. As she plied him with questions submitted by listeners before the program, he blamed the media for unfair coverage and “misinformation,” claiming that state auditors had known about the special account since 1990 but never investigated. “It is a lynching kind of atmosphere out there,” the chief justice told Sorrentino. He insisted that he had never done a dishonest thing in his life and that he would “stay the course.” In a later interview on WHJJ-AM, Fay insisted that problems with the account represented “sloppy management” rather than “criminality,” adding that he considered his radio appearances a public apology.
Despite Fay’s efforts to deflect the blame, Senate Majority Leader Paul Kelly and twenty-two senators issued a public call for him to relinquish his administrative duties while the Commission on Judicial Tenure and Discipline investigated. “There’s a cloud hanging over the court,” Kelly told reporters, “And that cloud has got to be removed.”
John Harwood was more blunt. He summoned reporters to a press conference in the House lounge. Flanked by Caruolo and Salisbury, both of whom had already called for Fay’s impeachment, Harwood announced that he had written to the chief justice asking him to resign. “I feel that significant damage has been done to the reputation and credibility of the highest court of our state,” the speaker read from his letter. “No person or group stands above the Supreme Court or the integrity of that body.”
A television reporter asked Harwood about a comment Fay’s spokesperson had made to the effect that “no way in hell” would the chief justice resign. Rather than answer, Harwood stalked out of his own press conference.
Caruolo took over in a soothing tone. “This is a delicate position to be in, because we may be called upon to begin an impeachment process if things keep developing. It’s very, very hard for us to ask for this. This may end up in House chambers.”
Another shoe dropped when state auditors reported that expenditures of $32,000 from special court accounts were clearly improper, while others worth $138,000 lacked documentation. As the revelations piled up, Gov. Sundlun insisted to reporters that Fay deserved the same “due process” that any ordinary citizen would receive, and would face an extraordinary public hearing before the Commission on Judicial Tenure and Discipline.
The final straw for Fay was a front-page investigative report by four Providence Journal reporters. Dan Barry, Ira Chinoy, Dean Starkman, and John Sullivan wrote that the chief justice had assigned lucrative arbitration work to five favored attorneys. One was a fishing buddy, another a political ally from years Smith was speaker. A third shared ownership of Fay’s office building in Lincoln, where the fourth was a tenant. The fifth was a Fay protege who rented space there for arbitration hearings.
On August 25, a month to the day after the first headline story, Fay relinquished his judicial duties temporarily. The next day — gaunt, pale, and wearing a navy blue suit — the chief justice was arraigned on three misdemeanor ethics counts before a subordinate in judicial robes. Joseph A. Kelly, who had defended DiPrete before the Ethics Commission, now stood in District Court beside Fay and said his client was not guilty. The chief justice was led to a back room to be photographed and fingerprinted.
As obvious as the facts seemed to be, the process for testing them in court or before the Commission on Judicial Tenure and Discipline could take months.
As summer slipped away a collective impatience gained momentum. Rep. James R. Langevin circulated a letter among his fellow representatives, asking Fay to resign. A member of the House Judiciary Committee, which could initiate impeachment proceedings whenever it chose, Langevin steered his motorized wheelchair into the House lounge to speak with reporters as lawmakers crowded around him. Beneath the portraits of Bevilacqua, Smith, and DeAngelis, he announced that fifty-eight representatives had signed his letter. “This is a clear sign,” he said, “that a majority of the members of the Rhode Island House have lost confidence in Judge Fay’s ability to lead the court. If Judge Fay does not resign, there will be significant sentiment to move for impeachment.” Langevin said resignation would avoid “a long, drawn-out impeachment process that could take four to six months,” a time when he said the Supreme Court “would be paralyzed.”
Fay wrote back to Langevin pleading for time and for due process. He summarized what he called “sweeping reforms” during his six years as chief justice, acknowledging in the passive voice that “mistakes have been made, and there are problems that clearly must be addressed.” But he clung to his office. “For me to resign,” he wrote, “would short-circuit the very process through which the public’s questions could be best answered.”
M. Charles Bakst, the Providence Journal ’s acerbic government affairs editor and political columnist, surmised that Fay might be clinging to his office as a bargaining chip to avoid jail. Bakst noted that the magnitude of the Smith-Fay scandal lay, ironically, in its smallness. Expenditures from the Supreme Court’s secret slush fund were trivial by comparison with DiPrete’s Cranston Land Deal and RISDIC’s complex financial machinations. “Here’s a question,” Bakst wrote, “Why does the nation’s highest paid chief justice have to engage in business sidelines — in this case, a real estate partnership?”
As August faded into September, the political season also turned. A resolution signed by a mere quarter of the representatives could begin impeachment proceedings, and nearly three-fifths had signed Langevin’s letter over a weekend. The outcome became inevitable. In mid-September, a month after he had called for Fay to resign, Harwood formally initiated impeachment proceedings, citing the “cumulative effect” of revelations about Fay’s use of court staff and offices on business related to the Lincoln office building.
Fifty-two representatives signed an impeachment resolution alleging that Fay had engaged in conduct that had “brought his judicial office into serious disrepute, substantially impaired the integrity of the judiciary, undermined public confidence in the integrity of the judiciary, and has demeaned his judicial office.” This move to impeach would be the first under an amendment that had been recommended by the 1986 Constitutional Convention and approved by state voters. The House Judiciary Committee would determine whether there was probable cause that the chief justice had committed “a felony or crime of moral turpitude, misfeasance or malfeasance in office or violation of the canons of judicial ethics.” The resolution to start the process passed by a vote of 74–15, with 11 not voting.
Meanwhile a Brown University poll showed that an overwhelming 76 percent of the public supported impeachment and 80 percent said Fay should resign.
Public disgust surged when the news broke that Fay had written on Supreme Court stationery to various traffic court judges to recommend leniency for traffic tickets issued to his brother-in-law, his law clerk, his secretary’s husband, and two teenage children of a friend who was president of Women & Infants Hospital, where Fay was a trustee. In one case Fay had written: “He is a salesman who does much traveling, and it certainly would not be helpful to have one speeding ticket on his record.” Fay often addressed administrators or judges by their first names but then signed: “Sincerely, Thomas F. Fay, Chief Justice.”
On October 8, Fay finally resigned. In a long letter to the governor, he wrote, “The events of recent days have convinced me that while I have been guilty of no intentional wrong-doing, my actions have, however well-intentioned, created an appearance of impropriety for which I alone must accept full responsibility.” Fay professed “a heavy heart but clear conscience” and said he was resigning to avoid additional suffering for his family “and for the people of this state that I have served so faithfully over the last sixteen years.”
For the second time in seven years, a politically connected chief justice of the Supreme Court had been forced to resign under a cloud of pending impeachment. Network television and major newspapers covered the story as another Rhode Island howler. The Washington Post gave two samples of the state’s “dark humor with an edge”:
Q: In Rhode Island, what do you call a man in a suit?
A: The defendant.
Q: How bad is the recession in Rhode Island?
A: So bad the Mob had to lay a couple of judges off the payroll.
Meanwhile, far below the radar, our embryonic judicial reform coalition had been planning strategy. The controversial election of Victoria Lederberg in Grand Committee had left many shaking their heads. Now a second Supreme Court scandal in seven years offered a unique chance to change the system. No one knew yet whether Fay would resign, as Chief Justice Bevilacqua had.
Charlie Silverman stunned our August meeting with a simple question: “What would happen if we could block the Grand Committee from filling that vacancy?”
He had our full attention. “The Constitution lays down requirements for the Grand Committee,” he smiled. “They can’t do anything until they have a quorum — more than half of all the representatives and senators together. I’m not making this up. It’s Article IV, Section 7.” After reading the section aloud, he suggested that we get pledges from more than half of the members in each chamber demanding merit selection and refusing to go into Grand Committee. “If we accomplish that,” he said mischievously, “the Grand Committee can’t fill the vacancy when Fay goes.”
“Wow!” said Alan Flink, former president of the Bar Association. “That could work! Rank-and-file lawmakers could block the Grand Committee.”
Silverman thought Harwood had the most to lose. “The speaker can bring incredible pressure to bear on individual legislators,” he said, “but signed commitments from a majority in each chamber would protect them and give us leverage.”
Tom Banchoff, a Brown University math professor who headed the Common Cause judicial reform committee, suggested that we promise each potential signer that we would not go public with the idea of a moratorium until we had signed pledges from a majority.
With Silverman and Operation Clean Sweep taking the lead, our fledgling coalition divided the list of lawmakers. We agreed to work quietly until we attained a critical mass.
At noon on a brilliant Thursday in August, RIght Now! returned as the public face of reform. Unlike our first announcement in December 1991, this time there were no pealing church bells, but leaders of churches and synagogues filled the State House rotunda along with citizen activists, lawyers, and business leaders. Charlie Silverman brought Operation Clean Sweep, the Government Accountability Project, United We Stand, and the Rhode Island Taxpayers Association. A new addition was the American Association of Retired Persons’ State Legislative Committee, which had telephone links to more activists than most of the other groups combined.
As a phalanx of lawmakers gathered on the marble stairs behind the podium, Alan Hassenfeld proclaimed the return of RIght Now! He reminded everyone that we had gone into “hibernation” until needed again. He said that the Supreme Court scandal had been “an electric cattle prod” that shocked the coalition back into action. “So now,” Hassenfeld declared with a wave across the crowd, “we’re all needed — every one of us! We stayed the course last time, and we’re going to be even more tenacious this time around.”
He rehearsed what RIght Now! had accomplished in 1992, including new ethics laws, campaign finance reforms, and four-year terms for statewide general officers. “Now we’re back,” he announced, “to deal with this embarrassing mess in our courts — a scandal that springs from the archaic way that Rhode Island chooses judges.”
In my turn at the microphone, I outlined the legislation that the Bar Association and Common Cause had been promoting for years without success. I renewed our demand that the General Assembly let voters end the Grand Committee’s role in picking Supreme Court justices and establish an independent judicial nominating commission to pick qualified candidates for all judicial vacancies. “Until all of our state judges are chosen on the basis of merit rather than for their political connections,” I said, “the citizens of Rhode Island will risk renewed embarrassment and outrage.”
Charlie Silverman quickly proved his worth. On September 13, he released signed pledges from twenty-six of the fifty state senators and fifty-three of the hundred representatives. In an interview with Providence Journal reporter Scott MacKay, Silverman spoke with restrained passion: “The citizens of Rhode Island have been electrified for the second time by the unethical behavior of a chief justice of the Supreme Court. Just seven years ago Judge Bevilacqua was forced to resign in disgrace, and now Judge Fay faces a similar fate. If we don’t change the system we have we’re doomed to have more of the same.”
I marveled at Silverman’s chutzpah. With no title but head of Operation Clean Sweep’s legislative committee, he had contacted scores of lawmakers. One by one, he and a handful of volunteers had persuaded incumbent legislators to risk retaliation for the stand he hoped they would take. Against all odds, he achieved a majority in each chamber.
Predictably, John Harwood defended the status quo. He told reporters he had always thought the Grand Committee was “the most democratic process for choosing the justices.” Harwood did not say that he would lose his pivotal role as judge-maker if the General Assembly “in Grand Committee” no longer elected justices to the Rhode Island Supreme Court. Although Paul Kelly had not signed Silverman’s pledge, he split with Harwood precisely as we hoped. He appointed a nine-member Senate Select Committee to study methods of judicial selection and recommend changes in Rhode Island’s process.
Only seven weeks had passed since the Providence Journal launched its expose of patronage at the top of Rhode Island’s judicial system. Even through the summer doldrums, the scandal had galvanized public attention. The investigative reporters who exposed Matthew Smith’s empire of secret patronage would win a Pulitzer Prize. Yet despite this apparent victory, a crucial question remained. Would the General Assembly’s centuries-old tradition of picking Supreme Court justices endure?
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.
Related Slideshow: Rhode Island’s History of Political Corruption
Related Articles
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter One
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Two
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Three
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Four
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Five
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Six
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Seven
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Eight
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Nine
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Nine
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Ten
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Eleven
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Twelve
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Thirteen
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter Fourteen
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 15
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 16
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 17
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 18
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 19
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 20
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 21