Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 34
Monday, October 26, 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 3
SEPARATION OF POWERS 1
34
Quintessential (1999)
No one knew how long it might take for the high court to rule. After oral arguments on November 10, I mounted a chart on the wall by my desk. On Day 57 Whitehouse disavowed and withdrew Pine’s brief. Week after week, I marked off one day at a time on my wall chart. Ash Wednesday fell on Day 99. At the State House, scores of lawmakers and lobbyists wore black smudges on their foreheads as a symbol of spiritual mortification. On March 17, Day 127, legislators feted their Irish and Italian patrons — shamrocks and green carnations for St. Patrick, zeppole with powdered sugar and Maraschino cherries for St. Joseph.
Yellow daffodils and forsythia dappled April days, and May brought a pale dusting of pollen. My chart needed more pages and ran down the wall. Day 200 was Memorial Day. Why was the Supreme Court taking so long?
Bob Kilmarx told the separation of powers task force that he saw two possible reasons for the delay. Either the justices were still struggling to refine the language of an opinion they hoped would stand the test of time, or they were deeply divided and trying to address a dissenting opinion.
Nancy Rhodes, now president of Common Cause Rhode Island, asked what would happen if the court failed to announce an opinion by July 1, 1999, the date on which the Ethics Commission’s ban would take effect.
Kilmarx said it would mean that a whole raft of state boards would lose their ability to obtain a quorum. No one could be sure how contracts signed after July 1 would be affected. Roger Williams University law professor Carl Bogus wondered aloud how rational judges could even think about an American state without separation of powers. “If these justices declare themselves against our nation’s core principle,” Bogus said flatly, “they would become a laughingstock among their colleagues in other states.”
On June 9, Day 211, Superior Court Judge Michael A. Silverstein issued an injunction that boded well for separation of powers. A bare majority of the Lottery Commission had voted to install 850 new video slot machines at Lincoln Greyhound Park and Newport Jai Alai. Five legislators appointed by the speaker and Senate majority leader had backed the new machines, while three public members appointed by the governor and one Republican senator voted against their installation.
Almond’s court challenge to the video slots vote had melded two causes he cherished: his desire to force a Supreme Court ruling — rather than an advisory opinion — on separation of powers and his abhorrence of video slots, which he called “the crack cocaine of gambling.”
On the pro-slots side, attorney Daniel V. McKinnon also approached the dispute with a double motive. McKinnon served as counsel for Lincoln Park and was both cousin and law partner of John Harwood. McKinnon had told reporters he respected the governor, but thought Almond’s lottery challenge might be more “imaginary than substantive.” Robert M. Silva, a prominent Middletown attorney who represented the Lottery Commission, had insisted that the quasi-public gambling authority was merely operating as required under Rhode Island law. Finally, Patrick Conley testified as an expert witness that the General Assembly had exercised absolute control over state lotteries “from their inception in 1744 for financing public improvement projects” until a ban in the Constitution of 1843.
Almond’s counsel, Joe Larisa, had argued two constitutional doctrines: bicameralism and presentment. Under the constitutional requirement of bicameralism, Larisa said, all bills must travel through both chambers and receive up-or-down votes by all elected legislators, not a select few. Presentment was the constitutional requirement that legislation be presented to the governor for signature or veto. Larisa argued that the expansion of video slots defied both requirements.
On June 9, Silverstein issued a preliminary injunction against additional machines, stating that the General Assembly’s legal requirement that two-thirds of the Lottery Commission members be legislators infringed on the governor’s constitutional obligations. Silverstein also affirmed that the General Assembly could not delegate its responsibility for regulating games of chance to a handful of its members.
Larisa applauded Silverstein and told reporter M. Charles Bakst that he could not imagine a better test case than the Lottery Commission, where sitting legislators dominated the commission against the wishes of the governor’s few appointees.
Lawyers for the Lottery Commission and the state’s two gambling venues appealed to the Rhode Island Supreme Court.
As the 1999 legislative session spun into its final weeks, I sensed a buzz in the House lounge. Surrounded by portraits of former speakers on deep red walls, I found historian Patrick Conley autographing copies of a book for legislators and lobbyists. Entitled “Neither Separate nor Equal: Legislature and Executive in Rhode Island Constitutional History,” it was a bound version of the history Conley had filed as a brief with the Supreme Court.
“Take one,” Conley urged me. “No hard feelings. I’ll even autograph it if you like.” He did, and I slipped it into my briefcase. Later, in a gallery above the House floor, I perused it. Conley noted in the acknowledgments that House Speaker John Harwood had contributed “both moral and monetary” support toward publication. Hundreds of copies in the House lounge had all been free — their cost covered through a legislative grant paid for by Rhode Island taxpayers.
Conley’s dedication page assigned Harwood a heady place in history: “To Roger Williams, Dr. John Clarke, Stephen Hopkins, Thomas Wilson Dorr, Samuel Ames, William E. Powers, and John B. Harwood — none of whom saw a conflict between their simultaneous roles as legislators and commissioners.”
Perhaps the others saw no conflict, but I believed Thomas Wilson Dorr had recognized and tried to address the problem. Otherwise the People’s Constitution would not have included a strong separation of powers clause and a ban on dual office holding. What if that ban had made it into the Constitution of 1843? Would the people have been spared a century and a half of secrets and scandals involving lawmakers who presumed to execute the very laws they had written? How would Rhode Island’s history have changed if the victors had accepted Dorr’s ban on dual office holding?
On the morning of June 29, Day 231 since the oral arguments on separation of powers, Tom Mooney called from the Providence Journal to tell me the Supreme Court clerk was handing out copies of the advisory opinion. I rushed to the courthouse and found a scrum of reporters and lawyers. The document looked impossibly thick, over a hundred pages, and I settled in a secluded nook to devour it. Four signatures stacked up on page 33: Joseph R. Weisberger, Victoria Lederberg, John P. Bourcier, and Maureen McKenna Goldberg. Robert G. Flanders had signed a dissent on page 101.
The first four justices began by analyzing the extraordinary power that voters had granted the Ethics Commission in 1986. They acknowledged that a unanimous court had confirmed it in 1992, but added that the commission’s authority “does not include unbounded power, without limitation.” The majority opined that government agencies deserve close scrutiny when interpreting their own authority because they “are likely to have an expansive view of their mission.” They wrote that the Royal Charter of 1663 delegated “virtually unlimited power to govern” upon the General Assembly. That authority allowed the legislature “to appoint persons, including from its own membership” to various administrative bodies. The Constitution of 1843 contained a broad powers clause that allowed the legislature “to continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution.” In 1986, the justices noted, Rhode Island voters reaffirmed the broad powers clause as part of the revised Constitution.
The four added that drafters of the state’s first Constitution intentionally rejected a ban on dual office holding. “Moreover,” they added, “legislative appointment of executive-type boards has been a long-standing practice in this state even under the first Constitution as early as 1844.” They rolled on with a sentence that took my breath away: “Thus, Rhode Island’s history is that of a quintessential system of parliamentary supremacy.”
I read that sentence several times. Their astonishing phrase had rhythm that demanded repetition: “a quintessential system of parliamentary supremacy.”
For Supreme Court justices to advance such a phrase was mind-boggling. The four argued in favor of parliamentary systems like those “in Europe and in over fifty countries throughout the world.” They insisted that parliamentary systems were “completely different from the structure adopted by the framers of our federal Constitution,” but that parliamentary systems were not “structurally unethical. The question of the structure of the government is not an ethical question, but a constitutional one.”
Their tone struck me as defensive and bizarre. The majority opinion insinuated that the Ethics Commission’s rule prejudged lawmakers as guilty; they flatly rejected the Ethics Commission’s conclusion that “legislative appointments to executive agencies create an inherent conflict of interest.” In their opinion, “any system may be operated in an unethical manner, depending upon the officials who may from time to time be placed in charge of the government.”
The four justices concluded that the 1986 Constitution never intended to allow the Ethics Commission to change centuries of tradition, nor had the voters empowered it to prohibit legislators and legislative appointees from serving on boards that executed state laws.
In answer to Almond’s first question about whether the Ethics Commission had authority to address separation of powers, the four declared an emphatic “No.” Then they declined abruptly — they claimed “respectfully” — to answer his second and third questions about separation of powers in Rhode Island.
The result of their opinion practically leapt off the page: “We suggest that the sole and proper procedure for restricting legislators from serving on or appointing ‘any other person’ to executive boards and commissions is through an amendment to the Constitution approved by the electorate, not by an ethics regulation.”
Surely these justices understood the virtual impossibility of getting a separation of powers amendment through the General Assembly. They also knew that the next conceivable date for a constitutional convention lay seven years in the future. They offered no hint that separation of powers might be a worthy goal for Rhode Island.
Throughout the majority opinion, references to “our colleague” burned on page after page — virtual scorch marks of their verbal struggles with Associate Justice Robert Flanders, whom the majority never honored as our “esteemed” or “learned colleague,” referring to him only as “our colleague.” And there lay the reason behind the delay, as the four justices struggled to win Flanders over to their position. For months, they had tried to blunt his argument.
On the page after their signatures, Flanders launched a 53-page dissent. He leaned on the high court’s 1993 advisory opinion supporting the Ethics Commission’s 1991 Revolving Door rule. That decision, he reminded the four, “flatly barred any member of the General Assembly from seeking or accepting state employment” while in the legislature and for one year after leaving. That unanimous opinion affirmed that “a ban on multiple-government-position holding by legislators and other public officials was ‘an effective device by which the public trust may be enhanced.’” The core of that opinion recognized the inevitable link between revolving door jobs and conflicts of interest. “Obviously,” Flanders continued, “this same prophylactic reasoning that the justices wholeheartedly embraced in 1993 to uphold the revolving-door ban applies with equal force to the commission’s ban on legislators participating in appointments to executive entities.” He challenged his colleagues to uphold the commission’s ban on “plural-government-office holding by legislators and their designees.”
He also reminded the majority that a previous decision had prohibited municipal employees from holding elective office in the towns where they were employed, precisely because “a public employee’s right to hold such an elective office ‘is outweighed by the government’s interest in preventing a potential conflict of interest.’” The 1986 Ethics Amendment, Flanders wrote, demanded that public officials and employees “adhere to the highest standards of ethical conduct” and “avoid the appearance of impropriety.” This constitutional mandate justified the Ethics Commission’s conclusion that it must bar lawmakers from conduct “that might subject them to conflicts of interest or expose them to potentially conflicting demands on their time, their loyalties, or their responsibilities as legislators.”
I marked margins and turned pages, amazed that the majority had rejected Flanders’s logic. Their effort to separate ethical behavior from government structure felt trifling beside his analysis. He noted that what were called the “ineligibility and incompatibility clauses” of the U.S. Constitution had been dubbed “America’s constitutional ethics rule.” Its precise language barred members of Congress from appointment to federal positions and prohibited federal office-holders from simultaneously serving in Congress. Flanders also reviewed the interplay of separation of powers and bans on dual office holding in forty state constitutions. Such bans were “the paradigmatic type of ethical restraint,” which framers of constitutions used to establish “what conduct is and is not ethically permissible for public officials.”
In response to Almond’s separation of powers questions, Flanders observed that the Rhode Island Constitution vested the “chief executive power” in the governor and required him or her to take care “that the laws be faithfully executed.” If the governor’s duty to execute laws faithfully had any meaning, Flanders declared, it “must be deemed to include, at a minimum, the right to superintend how the laws of this state will be executed.” With the chief executive power, he wrote, came the related duty to appoint executive officers. Without that power, Flanders argued, the governor would be “the functional equivalent of a show captain, propped up on the ship of state’s main deck in full-dress regalia for all the passengers to ogle, while the real legislative bosses steered the ship, barked orders, hired, fired, and supervised the crew and all those who toiled away in the boiler rooms below.”
Flanders reminded the other justices that delegates at the 1986 Constitutional Convention had considered and rejected a proposal to place the legislature’s power of appointment in the text of the Constitution. He urged them to draw a lesson: “The mere repetition of a constitutional wrong — no matter how frequent — cannot ripen into a lawful constitutional amendment.” He concluded with this question: “Shall the powers of our state government be checked and balanced? Or shall they be unchecked and imbalanced?” He expressed the hope that these advisory opinions would be only “the opening salvos in the greater and the potentially more dispositive crossfire that will now ensue. Let the people be heard. Vox populi, vox Dei (The voice of the people is the voice of God.)”
Flanders’s signature stood alone on the final page. He had been outnumbered but not overwhelmed. Whatever politicians might make of the stark contrast between these two opinions, Flanders had established the legitimacy of our case.
The next day a three-column Providence Journal headline declared, “Top court keeps power with Assembly — for now.” The legislature claimed victory. Under the photo of a smiling John Harwood stood a bold quote: “It’s clear to me that legislators can clearly sit on boards and commissions.” Paul Kelly looked pensive, but affirmed, “We feel the issue has been clearly put to bed.” A photo showed Almond reading the thick opinion. “They punted on the two big questions,” the governor declared. Reporter Tom Mooney also interpreted the majority’s advisory to mean this might not be the final word on “the tug-of-war between the executive and legislative branches.”
Sheldon Whitehouse, now Rhode Island’s top law enforcement officer, voiced his disappointment. “Regrettably,” he told reporters, “today’s decision again postpones the day when Rhode Island will finally enjoy a government that adheres to all the basic principles of American democracy.” In his article Tom Mooney gave me the last word. The Lottery Commission case, I told him, would soon land on the Supreme Court’s docket and was “the kind of case where there is a clear abuse of power, where there is no other commission like this in the whole United States, and where the absurdity of the Rhode Island practice is obvious for all to see.”
The winners moved quickly to exploit their triumph. The day after the Supreme Court’s advisory, lawyers for the Lottery Commission and Lincoln Greyhound Park urged the high court to lift the injunction against the additional 850 video slot machines. Justices Weisberger and Bourcier bounced that question back to Judge Silverstein, who had imposed the earlier injunction.
Two weeks later, lawyers representing the Lottery Commission, the House, the Senate, Lincoln Greyhound Park, and Newport Grand Jai Alai crowded the front bench of Silverstein’s narrow courtroom. I sat directly behind Daniel McKinnon, John Harwood’s cousin and law partner, who represented Lincoln Park, a seedy dog track now filling up each night with people hunched over video slot machines.
McKinnon strode forward with a posse of pro-slots lawyers. I wanted to stand up and shout that all three representatives Harwood appointed to the Lottery Commission had voted for the additional machines. Now the law firm Harwood and McKinnon would profit handsomely from this latest expansion of gambling.
“Today,” declared Robert Silva, a lawyer representing the Lottery Commission, “the landscape is markedly different than it was when this court last entertained this issue. There is no question the legislature has the power to have its members sit on commissions.” Silva suggested that if the judge had known a month earlier what he now knew, he would not have blocked the installation of new machines. He asked Silverstein to lift his injunction and allow the 850 new slot machines, and the judge had no choice but to comply.
Carl Bogus was an intellectual sparkplug. He sent a column to the Providence Journal blasting the majority opinion as “one of the most radical decisions ever rendered by the highest court of an American state.” He hammered the notion of a “quintessential system of parliamentary supremacy,” noting that although parliamentary systems lack co-equal branches of government, they establish checks and balances through other means, including “the ability to bring an administration to an end at any time through a vote of no confidence.” In parliamentary systems the prime minister serves as chief executive and appoints government ministers. In Rhode Island, by contrast, the governor is theoretically the chief executive, but the speaker controls lawmaking, budget, and administrative appointments.
He wrote that the majority should have looked to the historic moment in 1841 when a decisive majority of citizens approved the People’s Constitution. The Law and Order Constitution of 1843 won approval with only half as many votes. “In looking to history,” he wrote, “the court should have taken into account the fact that the people of Rhode Island voted overwhelmingly for the People’s Constitution, with its unequivocal adoption of the separation-of-powers principle.” With the state’s “ambiguous constitution and history,” he concluded, “the Rhode Island Supreme Court could have given the people of Rhode Island the benefit of a government of separated powers.” The four justices in the majority, he wrote, had deluded themselves, but few Rhode Islanders would join them in this delusion.
The Common Cause Rhode Island state board met twice in July to decide what next. “It doesn’t get more basic than this,” said Nancy Rhodes, our new president. “It’s time to redouble our efforts and let them know we’re not the least bit cowed.”
Vice President Daniel Siegel proposed that Common Cause raise $20,000 for legal work and publications. “We may not have the money now,” Siegel said, “but we can raise it. People are starting to understand that Rhode Island is floating half way between the American and British systems of government, and either would be better than what we’ve got.”
The board’s determination buoyed me up, but I could not imagine how to raise that much after such a defeat. Even if the money came through, legislative leaders would outspend us many times over. After all, over five legislative sessions our separation of powers bills had never received even a committee vote. Five years of effort had taught me that legislative leaders would never abandon their long tradition of running state government through executive boards. Instead of backing off in the face of criticism, they would thrust legislators onto more boards. They could also create new versions of the Lottery Commission where legislators could steer state contracts and dispense legislative patronage. And any who dared to confront their juggernaut would face retaliation.
On the cusp of a new century Rhode Island’s highest court had affirmed the legislature’s colonial authority to execute laws. Four justices had tangled the ropes on the ship of state and scuttled our quest for separation of powers.
Legislative leaders spent taxpayers’ money to publish a triumphal 86-page annotated edition of the Supreme Court’s advisory opinion, featuring portraits of the robed justices in living color.
Our quest suddenly felt like a fool’s errand. I shuddered to think how we could sustain a separation of powers campaign until 2004, when voters might decide about a constitutional convention. If we kept advocating for the principle, nothing else would pass; if we backed off, our cause would fade, and we would have trouble reviving it.
As summer settled in, I felt myself moving in slow motion or not at all. I lay awake through the dark of night, watching red numbers on the alarm clock change. Defeat left me wondering if I could continue at Common Cause. Could I ever go back to the State House? Could I face the sneering of John Harwood’s cronies? Could I find another job in Rhode Island beyond the speaker’s reach?
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
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