Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 31

Monday, October 05, 2015

H. Philip West Jr.

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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

31 Opening Government (1995–98)

Jim Langevin had won election as secretary of state in 1994 on a promise of government transparency. He had campaigned to transform that office “from that of record keeper and filing clerk to the people’s partner in government.” Langevin vowed to provide information citizens needed: calendars of public meetings, lobbyist reports, and hard-to-get legislative data. He also pledged to make government data available through personal computers and at a new public information center in the State House.

Within days of his inauguration, Langevin’s staff began scanning, compiling, and posting General Assembly documents on an electronic bulletin board. Legislative staff trying to provide the data electronically as required by our 1994 law got off to a slower start. Both offices were testing new technologies and competing to show results. In February 1995, both offices began offering legislative data through telephone hookups, and Langevin provided public computers at the State House. Many of us who had trekked to the State House each morning to scribble data from posted agendas gained chunks of valuable time.

Langevin quickly launched a new “online office” in order to level the playing field, since corporations had paid lobbyists to track legislation for them while ordinary citizens had to fend for themselves. Reporter Timothy Barmann wrote that even the Royal Charter of 1663 had been digitized and made available on the Internet, along with “a plethora of reports chronicling today’s happenings in Rhode Island state government.”

The rivalry intensified in April 1996, when the legislature mounted its website. George Caruolo invited reporters to test a new legislative system that featured many functions prescribed in the 1994 law. “This is real open government,” he declared. “This isn’t talk. It is action.”

Langevin relished the race and recognized that his efforts to post legislative data on a website could end when the General Assembly came fully online. “We’ve changed the environment,” Langevin said, “from being one of competition to keep secrets to one that opens up state government and provides easy access to public information.”

Both systems provided email, biographical information, and photos of all 150 state legislators. Langevin made double use of those data, replacing the state’s hardcover Rhode Island Manual with a far less expensive paperback called Rhode Island Government Owner’s Manual. Lowering the costs of publishing saved enough to buy and install networked personal computers in place of an obsolete Wang system.

During the summer of 1996, Langevin closed the musty basement room where copies of bills had long been stacked haphazardly on gray steel shelves. Workers covered glass panes in the oak doors with butcher paper, blocking sight but not sounds of construction. Word leaked that the new secretary of state was spending $115,000 for renovations to what he proudly announced would be a new public information center.

Before the official opening, John Harwood and George Caruolo asked for a preview, and Langevin gave them a tour.

A few days later Harwood sent identical letters to Langevin, Almond, and Nancy Mayer: “We must find a way to provide our members with the basic tools, including office space, that they need to be effective representatives of the people.” He noted that this would require “dislocation of current occupants of the building.” He demanded that Langevin and Mayer move to available quarters across Smith Street in order to make room.

“This is not about office space,” Langevin told reporters. “It’s about getting the secretary of state out of the public information business. It’s a dangerous abuse of power.”

As lawmakers returned for the 1997 legislative session, Langevin opened his new Public Information Center, a stunning transformation of the musty storeroom. Contractors had exposed century-old ironwork and brick ceiling vaults. Surfaces were now smoothed and brightened in pastel peach. Brass lighting fixtures illumined rows of counters that held hundreds of drawers where bills became available by number. During one reception, Langevin whirred his motorized wheelchair into a side aisle and opened up drawers of bills, praising the new information tools as essential to open government. “We can’t wait for another banking crisis,” he said, “to highlight the need for the free and truthful flow of information, from government to its people.”

A side room now contained computer terminals, where visitors could find schedules or search for key words in bills. Television monitors showed proceedings in the Senate and House chambers. Framed letters and historic drawings lined the walls.

The young secretary of state defended his turf in television and radio interviews. “I just find it too ironic,” he told reporters, “that on the eve of us opening up this public information center, all of a sudden we’re getting an eviction notice.”

Nancy Mayer fired off a letter to Harwood. “It defies common sense and logic,” she wrote, “to replace a full-time constitutional officer’s year-round presence in the Capitol building with offices for our part-time citizen’s legislature.”

The refusal of Langevin and Mayer to move out of the State House prompted a groundswell of public support. John Hazen White, the 82-year-old president of TACO, Inc., bought radio ads urging citizens to call their representatives and the speaker’s office. “Keep your friend Jim Langevin in the State House,” White urged listeners. White also published a broadside that filled four full pages in the Providence Sunday Journal. “Open Government a Necessity,” the first page proclaimed with a statement from Langevin about the public information center. Following pages included photos of computer terminals, bill drawers, and a conference room. On the fourth page, White included Harwood’s opening-day statement mocking “naysayers and would-be reformers.”

One day after White’s “Red Alert” appeared, Harwood and Senate Majority Leader Paul Kelly scuttled the move to oust Mayer and Langevin. The speaker told reporters that the secretary of state had threatened to spin the confrontation as an issue of open government. “That’s unfortunate,” Harwood said, “because the issue is space.” No one dared to disagree with him publicly, but out of his sight many rolled their eyes.

After organizing quietly, a new open government coalition began its public campaign in January 1997. Three years earlier Robert Utter, publisher of the Westerly Sun and president of the Rhode Island Press Association, had suggested that we have lunch. At Little Chop Sticks on Smith Street, he rehearsed the trade group’s work with a paid lobbyist: they had pushed for improvements in the state’s open meetings and open records laws but passed nothing. “As journalists,” Utter said, “we face peculiar constraints. We need to change the law, but it’s awkward when we also report on the General Assembly.” The publishers wanted to build a broad coalition like RIght Now!

I reminded him that RIght Now! had come together after RISDIC imploded and when depositors had felt betrayed by their government. Without scandal it would be harder to organize an open government coalition.

Utter agreed. “But we have to start somewhere,” he said, “and we’re in for the long haul.”

Over the next two years, ACCESS/RI took shape, its name an acronym contrived from first letters: All Citizens Concerned about Ending Secrecy in our State. Leaders of Rhode Island groups that shared a commitment to open government quickly joined: the American Civil Liberties Union, the League of Women Voters, Common Cause, Operation Clean Government, the Library Association, and the Rhode Island Press Association. But unlike the RIght Now! Coalition, which had been formed with organizational members, individuals incorporated ACCESS/RI in 1996.

Thomas E. Heslin, a managing editor at the Providence Journal, agreed to head the new coalition, and I served as vice president. Editors of two smaller papers — Mary Harrington at the Newport Daily News and Rudi Hempe at the North Kingstown Standard-Times — also joined the board.

We began drafting legislation to update the state’s Watergate-era open meetings and open records laws. Rhode Island’s Access to Public Records Law listed twenty-three kinds of documents that were “not deemed public” under any circumstances. These included personnel files, law enforcement records, technological secrets, adoption records, exam questions, and tax returns. By contrast, the federal Freedom of Information Act (FOIA) allowed judges to decide on a case by case basis whether government records could be forced into the open — thus balancing privacy or security interests against the public’s right to know. We decided to push for a similar “balancing test” in the Rhode Island law.

Other sections of our bill proposed to speed the release of government documents, to make computerized records as accessible as paper documents, and to raise the fines from $1,000 to $5,000 for any public official or body that blocked public access.

The new coalition for open government held its first press conference on New Year’s Day of 1997, the bone-chilling sixth anniversary of RISDIC’s collapse. On the broad marble steps where new exterior lights had first illumined the Capitol the night before, I announced the new coalition’s mission to shine new lights inside the State House.

“Our goal,” ACCESS/RI President Tom Heslin announced, “is to end government secrecy that may advance special interests, promote personal advantage, hide corruption, conceal official mistakes, avoid embarrassment in high places, intimidate activists or otherwise inhibit public participation in or knowledge about public activities.” Not surprisingly, our modest kick-off landed on front pages across the state.

ACLU director Steve Brown and I set out to find sponsors, and Rep. Mark Heffner agreed to introduce both ACCESS/RI bills in the House. “However good and needed our legislation is,” he reminded me, “it won’t pass the first year anyway. With the press on our side, we can take a long view. I predict we’ll win in the end.”

Heffner, an attorney, proved a tenacious advocate. As winter gave way to spring he kept pressing for a vote in the House Judiciary Committee, where he sat as a member. Warwick Rep. Robert E. Flaherty, a close ally of Harwood, chaired the powerful committee, and he stalled until an April deadline when bills must either pass or die. As time ran out, members of the committee were beginning to leave. Heffner raised a hand and asked Flaherty yet again for a vote on his open records bill.

Almost instantly Frank Montanaro, another Harwood loyalist, stood up and walked out, depriving the committee of a quorum. Heffner bolted into the hallway behind Montanaro and tried to talk him back, their voices loud enough to hear inside the room, but Montanaro stormed away. Without a quorum there could be no more voting. Our bill and dozens of others died quiet deaths. Without a vote who could be blamed?

The Senate Judiciary Committee, by contrast, unanimously approved the open records and open meetings bills sponsored by J. Michael Lenihan and Rhoda Perry. Newport Sen. M. Teresa Paiva Weed, newly chosen to chair the powerful committee, presented the open government bills on the Senate floor. She advocated for a balancing test based on the federal Freedom of Information Act.

Lenihan, as prime sponsor, got the last word. “We’re saying to our citizens, ‘You do have the right to information. You do have the right to know.’”

Senators voted in overwhelming numbers — 45–0 and 40–5 — for the two open government bills proposed by ACCESS/RI. But would the House ever follow?

During the fall of 1997, teams of college students fanned out across Rhode Island on what their faculty advisors jokingly called a scavenger hunt. Professors Ross Cheit at Brown and Linda Lotridge Levin at the University of Rhode Island both served on the ACCESS/RI board. Their political science and journalism classes would test how well municipal officials were complying with the state’s current Open Meetings and Access to Public Records Laws.

To prepare, students rehearsed introducing themselves to public officials. They played roles, practiced unflappable patience, and answered hostile questions about why they wanted the records. Student teams drove to police stations, town halls, and school offices in each of Rhode Island’s thirty-nine cities and towns. They requested specific documents that were explicitly public under current law. Where they encountered resistance, they repeated their walk-in visits. At each office, they noted what records were provided or denied. On a scale from “courteous” to “discourteous” they charted how officials treated citizens’ requests. Above all, they aimed to be scrupulously fair.

At police departments, they asked for daily logs, recent arrest reports, and any complaints of brutality — all public under the current law.

But few local police departments obeyed the law. When URI student Matthew Cotnoir visited the Smithfield Police Department to ask for records, he wound up speaking with four officers in succession. The fourth marched him into a back room, demanded his driver’s license, and photocopied it. “He interrogated me,” Cotnoir wrote afterward, “asking questions such as if I had reason to think the Smithfield police were watching me or if I had done anything wrong in the town that day and wanted to see if the police knew about it.”

After questions and insinuations, Smithfield police refused to release the arrest reports or let Cotnoir see their police log.

Neighboring Burrillville police also photocopied a student researcher’s license and demanded to know why he wanted the reports. Commanding officers claimed they were “not obligated to give out that information.”

In Cumberland, police turned students away three times — first because the record keeper was out sick, then because she was on vacation, and finally because she had left for the day. Eight weeks after a written request, Cumberland police provided three arrest reports.

From their visits students concluded that police departments obeyed the open records law only about a third of the time. They described a “culture of police secrecy.”

City and town clerks fared better, furnishing all the public documents requested, while school committees provided ninety-four percent of the materials.

The students unveiled their 77-page report, Access to Public Records; An Audit of Rhode Island’s Cities and Towns, on March 16, 1998. It made headline news on television and radio, and in newspapers across the state.

Police departments tried to deflect an avalanche of negative publicity. Chiefs around the state attacked the students’ methodology and conclusions. “You are asking kids to make judgments on government,” said Bristol Chief Russell Serpa. “I don’t think that’s right.” But defensive reactions only increased public pressure. Police departments began acknowledging their failures, and several promised to comply fully with the state’s open records law.

Controversy nudged reluctant representatives toward approving open government legislation. Rep. Mark Heffner had reintroduced his open records and open meetings bills that had died without a vote a year earlier. On a bright March day, the House Judiciary Committee again rushed toward the annual deadline when House bills had to be voted up or down. Dozens signed in to testify in support of Heffner’s open government legislation.

Students from Brown and the University of Rhode Island passed out copies of their report to committee members, and several told how intimidated they had felt when requesting public documents from the police. Leaders from the League of Women Voters, the ACLU, and the Rhode Island Press Association explained fine points of the legislation and urged passage. Gerry Billings, chair of the Common Cause freedom of information committee, urged the Judiciary Committee to act. “It’s really time,” he closed, “to show some resolve.”

Nisha Purushotham testified for the Rhode Island Organizing Project, which represented churches and community groups. Her group had requested records for dilapidated and abandoned buildings in Providence, but was refused until forty people staged a sit-in at City Hall and finally got the documents.

To my delight, the House Judiciary Committee approved several technical amendments and then voted to send Heffner’s bills to the full House.

On May 6, I watched from the gallery as the House finally took up Heffner’s Open Meetings legislation. The speaker was nowhere to be seen, but Majority Leader Caruolo signaled where the leadership stood on a slew of amendments. The question of penalties was crucial, and Heffner’s legislation proposed to raise the maximum fine for state or municipal bodies that violated the Open Meetings Law from $1,000 to $5,000. But Rep. Charles Levesque proposed an amendment that would roll the limit back down to $1,000, claiming that the higher fine would be unfair and calling the whole process “a trap for the unwary.”

Heffner pushed back that the higher maximum penalty could be imposed only for a knowing and willful violation. “This is not about a clerk who’s sloppy or had a bad day,” he said. “There must be a deterrent for severe violations.” But with Caruolo in the lead, Levesque’s amendment passed 64–20 and the higher fines vanished. The weakened Open Meetings bill passed almost unanimously.

During deliberations on Heffner’s Access to Public Records bill, several representatives pounced on the balancing test that would allow judges to weigh public interests against personal privacy in government records. Rep. Peter Kilmartin warned that it might make personal privacy “subject to a bureaucrat” empowered to decide. Rep. Barbara C. Burlingame argued that the bill would let the press “publish anything they wanted” regardless of personal privacy. Caruolo loyalists removed it by a vote of 57–30.

Further floor amendments amputated one reform provision after another. By the time the House finally passed the bill and transmitted it to the Senate, only a bloodied corpse remained. The Harwood majority Democrats sent a clear message: critics and reformers would get nothing until we showed respect. Harwood’s leadership team had clearly calculated that the public would not understand the legislative fine points and that their troops could still campaign for re-election on claims that they had voted for open government.

But newspaper reporters — long stymied as the students had been — reported the bloodletting in detail. The Providence Journal’s Bruce Landis contacted national experts who refuted representatives’ claims that the balancing test would jeopardize personal privacy, and ACLU director Steve Brown — widely recognized as Rhode Island’s leading privacy advocate — demolished the specious arguments that had carried the House debate.

Several days after the House passage of the weakened bills, the ACCESS/RI board met Rep. Mark Heffner at the Common Cause office. Heffner distributed a list of negotiating options, but the mood was gloomy. ACLU director Steve Brown scoffed at his suggestion that the bill could be revived. “What they did was pure mayhem,” Brown said. “They took out the balancing test, higher fines, and the requirement that people who file lawsuits can cover their legal costs. Support from us would only give them cover.”

“So you’re ready to drop the whole thing?” Heffner asked.

“What’s worth keeping?” Brown demanded.

“It’s a long shot,” Heffner said, “but hear me out. The Senate bills — which we all like — are now in the House Judiciary Committee. I’d like to make one last effort to reach a productive compromise — not everything we want, but better than nothing. There’s time to modify the Senate bills, bring them to the House floor, and get them back to the Senate.”

Brown shrugged it off. “What makes you think the House will suddenly become amenable?”

“They’ve made their point,” Heffner said. “And they’ve been pounded in the press for trashing our bills. If we come back respectfully, it’ll be in their political interest to compromise. I think it’s worth trying to bring them around.”

Brown asked what made him think so.

Heffner mentioned rumors that Caruolo was leaving the House and that Gerry Martineau would become majority leader. “I think that’ll happen, and they’ll let Gerry play the healer.”

“What about Kilmartin?” asked Brown.

Kilmartin, a Pawtucket police officer, had been furious about the students’ report after Pawtucket had been rated poorly for withholding police and school documents. His department’s scores were among the worst in the state. “Kilmartin’s proud of his fellow cops and his city,” Heffner said. “You ruffled his feathers.”

People chuckled.

“You can laugh,” Heffner said, “but Peter Kilmartin could help us achieve some constructive compromises.”

“The House will never agree to a balancing test,” Brown said.

“You may be right,” said Heffner. “But what if we can reach agreement on other parts of the bill? Wouldn’t that be a step forward? You’ve generated tremendous pressure with the reports of students being treated badly and turned away.”

“So why didn’t they go ahead and pass basic corrective measures?” asked journalism professor Linda Lotridge Levin, who had supervised the University of Rhode Island students. “What further proof do they need that the system’s broken?”

“It’s not about proof,” Heffner said. “It’s about pride.” Nearly bald but with a neat mustache, he instructed us on the fundamentals of lawmaking: “Your report got their backs up, and they weren’t your fans to begin with. But I think they know they went too far. Now that they’ve made their point and cooled down, I’d like to give it one last try. But there won’t be any compromises unless you around this table want them.”

No one spoke, and Heffner continued. “Look, here’s my bottom line. Suppose we can get half a loaf — not everything you want, but more than we have now. If we reach agreement and you blast it as insufficient, that would make this a useless exercise.”

Someone asked if the ACCESS/RI board could have final say on any further compromises.

“There may not be time for that,” said Heffner. “Things happen so fast in the final hours of the session. I hope you would authorize a couple of people from this body to speak on your behalf.”

From the chair, Tom Heslin suggested that Steve Brown and I consult on possible compromises and speak for the board. “So moved,” said several people, and it was done.

A few days later, on a blindingly bright June afternoon, Heffner whispered to me that George Caruolo was resigning as House majority leader and Gerry Martineau would take over. “I think that’s good,” Heffner said. “While Martineau negotiates with the Senate, he’s making Peter Kilmartin his point-man on my bills.”

“Kilmartin?” I shuddered. The Pawtucket police lieutenant, who was commuting to law school, had sponsored a House leadership bill to create the Rhode Island Cancer Council, a monster modeled on the Lottery Commission. Of its nine members, the speaker would appoint three, the Senate majority leader would appoint three, and the governor three. It would control all federal cancer research funds flowing into Rhode Island and defy separation of powers. I told Heffner I had testified vigorously against it.

Heffner said softly that he hoped we could keep the separation of powers question away from negotiations over his open government bills.

Against all odds, we would try to persuade Kilmartin about fine points of legislation that he resented and might not fully understand. Over several days Heffner, either alone or with Steve Brown or me at his side, reasoned with Kilmartin. Far from negotiating behind closed doors, our talks took place in the rotunda, hallways, House chamber, and lounge. Arguments were mostly civil though occasionally loud. To my surprise, our list of disagreements dwindled.

A sticking point remained over how a judge could fine public officials or bodies that wrongly withheld public records. Current law allowed a judge to impose a civil fine up to $1,000. ACCESS/RI had proposed raising the top penalty to $5,000 and adding language that would allow judges to award court costs and attorney’s fees for citizens who had to sue for access. But the House had stripped out both the higher fines and possible pay for lawyers. Without lawyers’ fees the ACLU would find it hard to attract volunteer attorneys.

The dispute boiled down to the uses of two words: “may” and “shall.”

Kilmartin insisted that language approved by the House on May 7 was fair to both parties: the judge “may impose” a fine of $1,000 on the public body or official, “may award” attorney fees to the complaining plaintiff, “may order” the public body to provide the records at no cost, and “may award” attorney’s fees and court costs to the official if the complaint proves groundless.

Heffner condensed the dispute over a 124-word section of proposed law into legal shorthand: “may/may/may/may” versus “shall/shall/shall/may.”

Kilmartin demanded “may/may/may/may.”

Steve Brown, in shirtsleeves, shook his head. “It’s gotta be ‘shall/shall/shall/may.’”

“If it’s fair to fine police departments,” Kilmartin shot back, “it’s also fair to fine students who file frivolous complaints and lose in court. Fair is fair. Make it mandatory or permissive — whichever you like — but impose the same risk on both sides.”

Brown was adamant. “Mandatory fines and obligations for public bodies that break the law. Only optional fines for citizen plaintiffs who lose in court.”

“What?” Kilmartin demanded incredulously. He stalked away.

Heffner chased his colleague and talked him back. Negotiations hung on a wisp of hope. “One more time, Peter,” Heffner asked. “Your bottom line?”

“Fair is fair,” Kilmartin said. “Make it ‘may/may/may’ or ‘shall/shall/shall.’ You decide, but either way, all parties assume the same risk and let the judge decide.”

“But the citizens seeking government records have nothing,” Brown parried. “Government officials have budgets, lawyers, and bureaucracies at their disposal.”

“Nonsense!” Kilmartin waved him off. “They’re equal before the law. You can pick whichever you want — ‘shall/shall/shall’ or ‘may/may/may.’ But I won’t agree to half and half.”

Brown shook his head. “This will stop the bravest people on earth from seeking public records.” Over this detail the entire package might go down. We agreed to talk again at suppertime.

Mark Heffner and I went to see Sen. Mike Lenihan in his high-ceilinged Senate office. Heffner guided Lenihan through the grid of compromises already agreed upon and ended with the remaining deal-breaker.

Lenihan rolled his eyes. “I wish I could help,” he said wistfully. “All I can do is have these items drafted as amendments and be ready to amend your bills that are over here.”

“Including shall/shall/shall/may?” Heffner asked.

Lenihan nodded. “Assuming you can get agreement from Kilmartin. Our leadership team would rather pass my bill as we passed it in May, but we’ll settle for less.” He asked if we thought Kilmartin would agree.

“Half an hour ago, he wouldn’t,” Heffner said. “Steve Brown is off looking for precedents that could help us.”

Brown found a 1978 U.S. Supreme Court decision that involved federal antidiscrimination laws. The prevailing plaintiff — such as students denied access to public records — was to be awarded attorney’s fees, but the defendant — like an official who wrongly denied access — would be awarded such fees only when a federal judge “found that the plaintiff ’s action was frivolous, unreasonable, or without foundation.”

“So that’s a similar case,” Brown explained to Kilmartin. “And the case law clearly follows ‘shall/shall/shall/may.’”

Kilmartin stood between fluted marble columns as he silently read and reread a highlighted section of the federal court ruling. “I see your point,” he finally said. “But I’m not sure the federal precedent applies.”

Gently, Heffner offered to go with him to a lawyer they both respected. “I’ll check it on my own,” Kilmartin said.

Unknown to any of us, the carefully choreographed dance between House and Senate that normally ended each legislative session was breaking down. Ironically, one flashpoint was Kilmartin’s bill to create a cancer council.

I had provoked members of the House a few days earlier with testimony against a new public corporation under direct legislative control, but the bill flew out of committee and passed easily on the House floor, 65–17.

In the Senate Judiciary Committee, however, it hit a wall. Professional lobbyists from the American Cancer Society, Rhode Island Medical Society, Brown University Medical School, Hospital Association of Rhode Island, and Lifespan — a network of leading hospitals — all testified against the proposed cancer council. A lobbyist from Brown objected to giving the new public corporation “exclusive responsibility” for gathering data and making research grants.

I testified before the Senate committee that the proposed council would create another egregious separation of powers violation. In an accompanying letter to Judiciary Committee members I warned against entrusting “these vast executive powers” to a board “directly controlled by leaders of the General Assembly through six of nine direct appointments.”

The next day, July 1, Senate Majority Leader Paul Kelly interrupted his chamber’s session and sent the senators home, blaming the impasse on Caruolo’s departure and Martineau’s sudden rise. Roughly twenty-five “must-pass” Senate bills were held hostage in the House Judiciary Committee, while at the same time House leaders were demanding the passage of more than seventy bills stranded in Senate committees, including Kilmartin’s cancer council.

During the impasse, Providence Journal reporter Bruce Landis asked about the prospects for our open government bills. I said the House had weakened the legislation, making it “simply not a step forward.” Steven Brown was more blunt: “My guess is, it’s dead.”

“I’m going to keep pushing,” Heffner told Landis. “I’d give it one in five chances of passing.” In his story Landis quoted an anonymous representative saying that some House leaders hated me and were angry enough to run me over in their cars. Senators, by contrast, had approved the open government bills in May, and Sen. Teresa Paiva Weed told Landis: “One certain way to improve public confidence and trust in what we’re doing is to let them see the records.”

Negotiations between House and Senate leaders finally cleared the way for lawmakers to reconvene on July 14, 1998, weeks after the session normally ended. Piles of legislation hung in the balance, and Kilmartin had still not told us which version he could accept. Heffner and I were on the House floor when Kilmartin entered the chamber, and Heffner darted toward him. Moments later, he returned. “He may not like it,” Heffner said, “but he’s learned enough law to appreciate a Supreme Court precedent.”

With only hours to go we would need to amend bills in both the House and Senate Judiciary committees, get floor votes in both the House and Senate, and then deliver the amended bills back to their chambers of origin in time for final floor votes. I asked Heffner if he was sure Kilmartin’s word would get us through.

“I’m not sure of anything,” Heffner said. “But it’s all we’ve got.”

While Heffner went in search of House Judiciary Chairman Robert Flaherty, I went to find Mike Lenihan and Teresa Paiva Weed.

In the final days of each legislative session, the House and Senate typically suspended rules for posting bills before floor votes. Leaders in each chamber wanted their priority bills passed and carried back to them or transmitted to the governor before they allowed final votes on bills from the other side that they held hostage. Tensions soared; tempers flared.

I sat on a couch that curved along the back of the Senate chamber while senators plodded through committee reports and hundreds of votes. Forty-second on the calendar was Kilmartin’s bill to create the Rhode Island Cancer Council. Paiva Weed, as chair of the Judiciary Committee, presented a floor amendment and announced that her committee recommended it. Although I had no way of reading the actual text, I inferred that the bill still included the six House and Senate appointments.

Paiva Weed offered a floor amendment urging the appointment of cancer survivors to the board, and the senators approved. The amendment seemed futile, since cancer survivors could not deter systemic patronage, and passage would give lawmakers control over many millions of research dollars. In the dull routine of parliamentary procedure, this new monster was becoming law before my eyes. I wanted to protest, but sat silently. Only four senators dared to vote against it. A clerk stamped the amended bill, and a routine motion sent a messenger carrying it back to the House chamber for final passage.

Late in the evening, Paiva Weed announced the substitute version of Mark Heffner’s open records bill. With sheaves of paper in his arms, Mike Lenihan described details of the compromise, more than two-dozen specific changes, which most members of the Senate were hearing for the first time. He explained that the revised legislation would prevent public officials from demanding to know why a document was being sought, would limit what agencies could charge for copies, would require agencies to provide computerized records, and would make it clear that arrest reports must be open to the public. “It would require a judge to award reasonable attorneys’ fees to the prevailing plaintiff,” Lenihan added. “As some of you will remember, this is the first comprehensive open records reform since our current law was enacted in 1979.”

While Lenihan spoke, I noticed Heffner hovering at the far end of the Senate’s mahogany rostrum. By custom lawmakers moved freely in both chambers, but I had not expected to see him there. He had told me earlier that the new House majority leader, Gerry Martineau, had warned him to get the Senate version of his bill back quickly because representatives would not delay adjournment for it.

“This is far from perfect,” Lenihan was saying, “and I much prefer the version we approved back in May, but this compromise is a substantial step in the right direction.”

After cursory debate, the lieutenant governor ordered the electronic vote. Thirty-nine green lights came on, overwhelming five red ones. The gavel came down and a clerk in the well stamped and signed the face sheet to authenticate its passage.

A page would normally carry a box of bills across to the House, but I saw Heffner whispering to Senate officers. A clerk handed the bill to him, and he bolted toward a side door. I slipped out into the rotunda just in time to see Heffner racing down the hallway. He sprinted toward the House chamber, skidded around a turn and toward the main entrance. I dashed up a stairway to the House gallery.

On his feet near the front of the House, Gerry Martineau, the chamber’s new majority leader, was asking his colleagues for unanimous consent to consider Heffner’s legislation, which had just arrived from the Senate. “For those of you who may have forgotten,” he said, “we passed a version of this legislation in May. Rep. Kilmartin had major objections at that time, and he’s been talking with proponents since then. He’s been our point-man on this, and he’s satisfied with a series of compromises in the bills.”

There were no copies of the final text for representatives to read. The Senate versions had not escaped from House Judiciary. Everyone was exhausted. There was no more time.

Heffner’s bills were the last two approved in the House in the 1998 legislative session. Compromised though they were, they contained the first comprehensive reforms of Rhode Island’s Open Meetings Law and Access to Public Records Law since the original enactments two decades earlier. These bills enshrined in law a laundry list of significant reforms.

Six days later, on July 20, Gov. Lincoln Almond signed both bills into law and handed the pen to Heffner. I applauded enthusiastically. For all the work by ACCESS/RI and all the students’ struggles to get records, three lawmakers had delivered these two bills. Peter Kilmartin had agreed to essential compromises, Mike Lenihan had shepherded them through the Senate under great pressure, and Mark Heffner deserved historic credit for literally dragging these bills into being.

As I left the governor’s elegant State Room, Almond’s executive counsel, Joe Larisa, held a sealed envelope. “I’ll give you this if you promise not to open it until you’re back in your office.”

I agreed and shook his hand. With his mysterious envelope in my briefcase, I walked the half-mile west along Smith Street. While I waited for my lunch order at the Mandarin Garden, I read the longest veto message I had ever seen: four pages of single-spaced text. Almond vetoed Kilmartin’s cancer council bill. The governor wrote that he “wholeheartedly” supported the goals of “providing cancer care, research, prevention, detection, and education” but that he must veto the legislation “because its legislative appointment provisions violate the constitutionally-mandated separation of powers.”

Anticipating the struggle yet to play out before the state Supreme Court, Almond added: “Soon after the adoption of our Constitution in 1843, the Rhode Island Supreme Court held that separation of the powers of the three branches of Rhode Island government was ‘the great principle of American liberty.’”

Earlier chief executives, no matter how bold, had shied away from what legislative leaders had warned would be a declaration of war. Almond — the state’s first governor with a four-year term — had vetoed previous bills that violated separation of powers with polite, even deferential, language. But now, with full-throated eloquence and ample citations, the towering former prosecutor was throwing down his gauntlet. He clearly believed separation of powers was necessary for Rhode Island and would help him win a second term.

As the summer of 1998 slipped away, I wondered why Democrats who held overwhelming majorities in the House and Senate never tried to override the Republican governor’s veto. Since the Senate had passed the cancer council bill under duress, had Senate leaders signaled Harwood that they would not return to override? Were Democrats only offended by the cancer council boondoggle? Or could they be pondering separation of powers?

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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.

Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 31

Part 3
SEPARATION OF POWERS 1

31

Opening Government (1995–98)

Related Slideshow: Rhode Island’s History of Political Corruption

Buddy Cianci

Joseph Bevilacqua

Thomas Fay

Brian J. Sarault

Edward DiPrete

Plunder Dome

N. Providence Councilmen

Charles Moreau

Joe Almeida

Gordon Fox

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Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 31

Part 3 SEPARATION OF POWERS 1

31

Opening Government (1995–98)

Related Slideshow: Rhode Island’s History of Political Corruption

Buddy Cianci

Joseph Bevilacqua

Thomas Fay

Brian J. Sarault

Edward DiPrete

Plunder Dome

N. Providence Councilmen

Charles Moreau

Joe Almeida

Gordon Fox

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Part 3
SEPARATION OF POWERS 1