Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 49
Monday, February 08, 2016
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 4
49
Finally? (2004–05)
The 2004 Common Cause scorecard cited both breakthroughs and throwbacks. “The session stretched into August of the election year,” we wrote, “producing a blizzard of bills that delighted and dismayed reform advocates.” As the dust settled, it became clear that more major reforms passed in 2004 than in any other year since the post-RISDIC crop of 1992. But lawmakers’ support for a plainly unconstitutional casino amendment harmed their credibility.
During that summer, our separation of powers task force had morphed into a Separation of Powers Coalition with Alan Hassenfeld and Sheldon Whitehouse as co-chairs. In 1992, Whitehouse had raised the issue with his unforgettable comment — “You will not cut the deep root of Rhode Island’s corruption until you get to separation of powers” — and Hassenfeld had backed the effort even when other business leaders bowed out. Now, with the toymaker’s encouragement, the RIght Now! Coalition came out of hibernation.
Nearly every member of the General Assembly had voted to put separation of powers on the ballot, but we believed that many resented the loss of legislative supremacy and might seek other ways to preserve their prerogatives. To lock lawmakers in, we mailed pledge cards to every member of the House and Senate: “I hereby declare my public support for Separation of Powers, Ballot Question One. I pledge that if elected I will consider smooth transition and effective implementation priorities.”
Piles of the yellow pledge cards came back to the Common Cause office, and we invited the entire General Assembly to a kick-off event on September 20, 2004.
In the State House rotunda, bright shafts of sunlight fell from narrow windows far above and moved like slow spotlights across a crowd festooned with signs and banners. People from thirty-nine groups in the coalition held a long banner in RIght Now! colors: “Vote Yes on #1. Separation of Powers.” Others on the converging stairways held lawn signs with the same message.
From a podium on the central landing, Gov. Don Carcieri reminded the crowd that he had made the Separation of Powers Amendment a top priority of his administration. “This is an issue that the future of our state rests on,” Carcieri declared, “and I don’t think I’m underestimating that one bit.” Since his speech two years earlier about giant tentacles crushing the ship of state, separation of powers had become his mantra.
Speaker Bill Murphy and Majority Leader Gordon Fox clapped politely, as did most of the thirty-five or so legislators behind Carcieri on the marble staircase. I expressed appreciation to Murphy and Fox for coming.
Under the proposed amendment the youthful speaker would sacrifice more power than any of his predecessors had done in all of Rhode Island’s history. He would surrender his legal authority to appoint surrogates to an array of public and quasi-public boards that controlled thousands of jobs and millions of dollars.
In his turn at the microphone, Murphy shared none of Carcieri’s triumphant tone, saying merely that the House Separation of Powers Committee would meet several times that fall to prepare for the coming transition. He credited chair Elaine Coderre, who stood near him on the stairway, for taking time from her campaign to do the necessary research. “It’s something of utmost importance,” Murphy said. “We have to proceed with great caution. We’ll hopefully have most of the framework done by, I’d say, mid-January and we’ll go from there.”
The crowd applauded. Less than two years had passed since Murphy had become speaker, but on his watch the House had approved the Separation of Powers Amendment, something unthinkable under John Harwood.
Sheldon Whitehouse called it ironic that Rhode Island — a leader in fighting for independence from Great Britain and in pushing for a Bill of Rights in the U.S. Constitution — should only now “be bringing itself into alignment with one of the most basic principles of the American system of government: the separation of the executive, legislative, and judicial powers. I expect those brave Rhode Islanders of history will look down on us from the heavens this November, and I hope they will be proud. Thomas Wilson Dorr, I hope you in particular are watching.”
Whitehouse also offered a new metaphor. “Consider a family that owns an old house and decides to bring the electrical system up to code. That family will never know what tragedy it spared itself. Would a child someday have been shocked or even electrocuted? Would a short circuit have sparked a fire? You’ll never know. You do it anyway. You do it because it’s the right thing to do. Like that family, we will never know what scandal or disaster this referendum will spare us.” He ended by declaring that Rhode Island was finally coming into alignment “with the principles of that first miraculous Constitutional Convention in Philadelphia in 1787. At long, long last, may it be so.”
Alan Hassenfeld warned against complacency. “Unless we are willing to work harder than ever to get out the vote and ensure separation of powers becomes a reality, it won’t happen,” he said, announcing the RIght Now! Coalition was coming out of its ten-year hibernation for one last hurrah. “People forget,” he said tenderly, “but I don’t want them to forget, because we’ve come so far.”
A few hours after the rally, Kenneth McKay, phoned me at the office. McKay had run Donald Carcieri’s 2002 campaign and become the governor’s chief of staff. I could count the times we had spoken on one hand.
“To what do I owe the honor?” I asked.
“No honor” McKay yelled. “We did this Separation of Powers Amendment, and you gave Whitehouse top billing.”
“Ken,” I managed to say in soft voice, “Gov. Carcieri has done a lot, and he got a top slot, as he deserved. What’s wrong with that?”
“Whitehouse is already running against us for 2006,” McKay complained, “and you gave him top billing.”
When he finished venting, I said Whitehouse had raised separation of powers with me when he worked for Gov. Sundlun. “That was in 1992,” I said. “Democrats in both chambers took Sheldon’s support as an act of war. They punished him for taking the lead on this issue.” I reminded McKay that his boss had done nothing for separation of powers before he started campaigning in 2001.
Question 2 asked voters whether to convene a constitutional convention. A 1973 amendment required that at least once every ten years voters be asked the question: “Shall there be a convention to amend or revise the Constitution?” Wisely, the amendment also called for appointment of a bipartisan commission to “assemble information on constitutional questions for the electors.”
In 1994, the General Assembly and Gov. Sundlun failed to create the required panel, but legislative leaders had done the job in 2004: four state representatives, four senators, and four knowledgeable citizens. In August, the panel reported a list of possible convention topics, not recommending for or against a convention, but raising the question of budget. The 1986 Constitutional Convention had cost $891 thousand, which inflation might increase to $2 million or more for 2006.
While all of the reform groups strongly supported Question 1 for Separation of Powers, we clashed over the need for another convention. Speaking for Operation Clean Government, former Rep. Rod Driver told the Providence Journal, “We just see all kinds of changes that are needed. We’ve had a very frustrating experience with the legislature.”
I explained our board’s more cautious position: “We think the legislature can do some things well if it takes time and works on them.” I mentioned the ten-year battle for the Separation of Powers Amendment in which the final text had been refined and strengthened in the struggle.
Bob Arruda, chair of Operation Clean Government argued that ten years was too long and that it had taken a series of high-profile scandals to get separation of powers onto the ballot. “If we have to wait that long and wait for the right scandal to get such things as line-item veto for the governor and some of the other reforms we think are necessary to bring this Constitution into the twenty-first century, we all are going to grow old waiting,” he argued. “It’s just not going to happen.”
Gov. Carcieri also urged people to approve a convention. “If it’s done well, with a balanced representation and lots of input from the public,” he said, “I think there are significant issues here that I’d like to see addressed.” He cited the need for a line-item veto amendment, term limits for legislators, and voter initiative.
A coalition of twenty-three groups came together in haste to urge voters against a convention. We announced our opposition in the Old State House on Benefit Street. Lila M. Sapinsley, a founder of Common Cause Rhode Island and former Senate minority leader, told what happened when she served in the 1986 Constitutional Convention. Still elegant in her eighties, Sapinsley said she began with high hopes that delegates would create a line-item veto and approve “a nonpartisan way” to choose judges.
“Of course, I was extremely naive,” Sapinsley said dryly. “I want to say to the people of Rhode Island: please do not repeat my mistake and that of others.” She argued that Democrats in the General Assembly had dominated the election of delegates and controlled the convention.
ACLU Director Steve Brown said the 1986 gathering had been preoccupied with an anti-abortion amendment. He warned that with a rising tide of antigay amendments on the ballots in many states, definitions of marriage would inevitably become the flashpoint of any new convention. He insisted the Constitution was “not some student’s tenth-grade essay that every few years we get together and edit it to try to make it look a little better.”
Will Barbeau of Operation Clean Government answered us in a Providence Journal opinion piece. “Convention opponents try to scare citizens with undocumented stories of hot-button social issues related to marriage, guns, birth control, etc. Yet every decision reached in a convention must pass the muster of your ballot vote months later.”
The Journal’s editorial board urged readers to vote yes on Question 2, noting that opponents “worry about a runaway train discarding worthy parts of the constitution and going off the tracks by bickering over such social issues as same-sex marriage and abortion rights.” The editorial concluded: “We should not let fears conquer the hope of creating a government that better serves the public.”
A decade earlier, RIPEC director Gary Sasse had chaired the Blue Ribbon Commission on the Future of the General Assembly and had served on the bipartisan panel that reported on possible convention issues. Sasse and I co-wrote an opinion piece against the convention. We reminded readers that during the last twelve years, public pressure had forced four major amendments onto the ballot: four-year terms for statewide general officers; merit selection of all state judges; a smaller legislature without pensions and with reasonable pay; and separation of powers.
We added that it would take time to fully implement the Separation of Powers Amendment, which would “restructure state government in ways that need to be absorbed and understood before we rush into further changes.” By way of example, we explained how the restructuring of public and quasi-public boards would affect the wording of any line-item veto.
Our final point stressed accountability. “The convention delegates are chosen in off-year elections, when voter turnout is low,” we wrote. “There are no limits on the amount of campaign contributions that the delegates may accept, and because they do not have to stand for re-election, the delegates can focus on single interests.”
Election day brought a warm light rain. I voted, went to the Common Cause office, and tried to concentrate on backlogged work. The office was empty and silent. Gail Walker, our reliable office manager for twelve years, had just retired and was moving to New Hampshire. Diana Kelly, a recent Phi Beta Kappa graduate of William and Mary College, would start the next day.
Under the shadow of wars in Afghanistan and Iraq, experts predicted a higher turnout in Rhode Island for the 2004 presidential election than the gubernatorial contest had drawn in 2002. Though John Kerry was almost certain to carry “deep blue” Rhode Island, presidential contests always drew more voters than other elections. Radio stations reported long lines at polling places. There was no way to gauge how this surge of voters would rate the Separation of Powers Amendment or the question of calling a constitutional convention.
Polls closed at 9:00 p.m., and the first returns on Question 1 appeared within minutes. Separation of Powers jumped off to a solid lead and never faltered. By contrast, numbers fluctuated as Question 2 hovered between victory and defeat.
The Separation of Powers amendment prevailed with 78.3 percent of the votes cast. In the town by town tallies, Speaker Bill Murphy’s hometown, West Warwick, had the lowest level of approval: 72.2 percent. By contrast, voters rejected Question 2 — the proposed constitutional convention — by a statewide margin of 175,596 to 162,293, just under four percent.
Defeat of Question 2 enraged its backers. In a letter to the editor, one couple from Cranston wrote: “Government reform has been set back years because of the fear and narrow-minded, sludge-brained thinking of a few special-interest groups that oppose open discussion of issues and prefer to shut down debate.” They added: “One of the most disheartening revelations in all of this is that Common Cause was an integral participant in this coalition.”
Operation Clean Government vice chair Beverly Clay wrote to the Providence Journal: “The unions stayed in the background as Phil West, from Common Cause, and Steve Brown, from the American Civil Liberties Union, gave their message. Union money paid for radio ads, cable-TV ads, automated phone calls and several 3-by-6-foot signs that were hung illegally over Route 95.” OCG also filed formal complaints with the Board of Elections charging that two coalitions had violated election spending requirements: Citizens for Representative Government that opposed Question 2 and the RIght Now! Coalition that supported Question 1. In another press release Bob Arruda denounced both coalitions for “behaving as if they were above the law.”
In fact, the renewed RIght Now! Coalition had gone to great lengths to comply with Rhode Island’s muddled ballot advocacy law. Sheldon Whitehouse had distributed a legal memorandum in September that explained the law and how groups in the coalition must comply with its financial reporting requirements. By contrast, Citizens for Representative Government, a loose and hastily organized coalition, had met only for a single press conference. I made sure Common Cause reported our expenditures and hoped all the other groups would do the same. I found out later that several unions had formed a political action committee to cover the costs of printing and advertising.
In his Tuesday column, Ed Achorn, a supporter of Question 2, announced that he had tried to track down Edward O’Brien, whose signature appeared on a campaign finance report as treasurer for the Citizens for Representative Government. Achorn discovered that Guy Dufault, a former chairperson of the Democratic Party, had worked with public employee unions to broadcast commercials against the constitutional convention. Dufault had said O’Brien was a member of Common Cause and lived in Narragansett.
When Achorn phoned me, I found no Edward O’Brien in our database of current or lapsed members. Achorn exposed other deceptions and concluded that Dufault had concealed his own role and organized labor’s financial contribution. Achorn stopped short of asserting that Question 2 would have passed if voters had fully understood that labor unions were working to defeat it.
Labor had not influenced the Common Cause decision to oppose convening another constitutional convention, but I wished I had asked more questions before I participated in the hasty press conference against Question 2.
But the charge that those who opposed Question 2 were shills for organized labor was false. Lila Sapinsley, Steve Brown, and I had articulated clear, distinct messages. Most of the groups in the coalition opposed a constitutional convention out of practical or policy concerns. Planned Parenthood and the Coalition to Preserve Choice were dismayed by the anti-abortion referendum that the 1986 Constitutional Convention had placed on the ballot. The Civil Rights Roundtable, Latino PAC, Urban League, Ministers’ Alliance, Poverty Institute, and Commission for Human Rights were all troubled by the avalanche of ballot questions in other states that restricted powers to tax, banned affirmative action, or outlawed same-sex marriage.
Eight months passed without any word of an investigation of the OCG complaints. Finally, I phoned Robert Kando, a new executive director at the Board of Elections, and said we had not heard from investigators.
“No, you haven’t heard from us,” Kando said. “The law makes us keep complaints confidential, even if the complainant makes them public. As you know, the ballot advocacy law’s a mess. We can’t enforce it. I don’t think it’s enforceable.”
“So what happens to the OCG complaints?”
“Exactly what’s happened so far.”
“Which is nothing,” I said.
“Exactly.”
“So can we fix the law?” I asked.
“Not easily,” Kando said. “I would hardly know where to start.”
Within weeks of its landslide approval, Rhode Island’s new Separation of Powers Amendment began to raise practical questions. For several years people on Block Island had been fighting a $1.89 million expansion of Champlin’s Marina in their Great Salt Pond. At a December 2004 hearing of a Coastal Resources Management Council (CRMC) review committee, attorney R. Daniel Prentiss, representing the Committee for the Great Salt Pond, argued that the Rhode Island Constitution now barred Sen. V. Susan Sosnowski and two other legislative appointees from further participation.
Committee chair Paul Lemont shot back: “Your conclusion would lead to an absurdity. All the state’s commissions would be disemboweled and the government would grind to a halt.”
Sosnowski understood Lemont’s point. As a member of the committee reviewing Champlin’s expansion, she had studied hundreds of pages of documents and listened to endless hours of testimony. But the previous spring, on the Senate Committee on Government Oversight, she had supported Mike Lenihan’s three omnibus bills to end legislative appointments on public boards, including her seat on the CRMC. Each of Lenihan’s three bills ended with an implementation clause: sixty days after voters ratified the Separation of Powers Amendment, legislative appointments to CRMC and other executive boards would end.
Sosnowski had joined in three unanimous Senate votes that approved Lenihan’s bills and sent them to the House, where they died. Nonetheless, she knew that passage of the Separation of Powers Amendment had rendered her appointment to CRMC unconstitutional. Sosnowski weighed her vote on Champlin’s marina against her duty to uphold the Constitution. She stopped voting and announced that she would resign from the CRMC on New Year’s Day, when the Separation of Powers Amendment would take effect.
Other lawmakers followed Sosnowski’s lead. Just before Thanksgiving, House Deputy Whip Paul E. Moura told reporter Liz Anderson that House leaders were recommending that their members abstain from votes on the affected boards or resign altogether. Moura gave up his seat on the powerful Capital Center Commission. Rep. Peter T. Ginaitt still sat on the controversial Narragansett Bay Commission (NBC), but he abstained from voting because he wanted to “err on the side of caution.” Two senators on the sewage agency’s board — Michael J. McCaffrey and Daniel DaPonte — followed his lead.
No one knew what would happen with other boards.
On a gray December morning, Pulitzer-Prize-winning investigative reporter Jack White phoned me from Channel 12, the CBS Network affiliate. “I’ve just come off the set from interviewing Bill Murphy and Joe Montalbano for Newsmakers,” White said. “They claim the Lottery and Coastal Council are not included in separation of powers, and we have him on tape saying they intend to ‘carve them out.’ I wonder if I could come by for your reaction.” Twenty minutes later, White arrived with a camera operator.
On their tiny monitor, Murphy smiled through a question about whether the Lottery Commission was covered by the amendment. His reply dropped a bombshell: “I think the Constitution itself is pretty clear that the General Assembly controls lotteries in the State of Rhode Island.” Murphy said the Lottery Commission should have “representations from both the House and Senate. The language of the Constitution is unambiguous.” “That will come as news to a lot of people,” White countered. He said the lottery had been mentioned repeatedly before the vote.
Murphy stood firm: “It’s clear in the Constitution that lotteries are regulated by the General Assembly.” Moments later he and Montalbano agreed that the Coastal Resources Management Council (CRMC) could also include legislators, citing Article I, Section 17 of the Constitution, which held that the General Assembly had a duty “to regulate the shoreline.”
With the camera now mounted on a tripod, White asked my reaction.
“The speaker is wrong,” I said. “The people of the state will not tolerate that kind of reading. Voters understood that the Lottery Commission is one of the first that has to change under the amendment they approved. A ‘carve-out’ is unthinkable.”
News of Murphy’s claim spread to other news outlets. When Journal reporter Liz Anderson phoned, I said the Constitution distinguished between the “prescribing and regulating” roles of the General Assembly and the “operating” duty of the Lottery Commission, an executive function that the Separation of Powers Amendment assigned decisively to the executive branch. I suggested that Murphy was slipping into “a turn-back-the-clock mode,” departing from public pledges he and many of his members had made that they would ensure “smooth and effective implementation” of the amendment.
When my comments landed on the front page, Murphy phoned me, sounding less angry than either of his predecessors would have been. I told him he had played a positive role in placing the Separation of Powers Amendment on the ballot, but his recent statements were wrong. I reminded him that the Lottery Commission and Coastal Resources Management Council had been central to the separation of powers debate for ten years and throughout the fall campaign. Each had executive functions, and both were on the minds of the 78.2 percent of voters who had approved Question 1. “Mr. Speaker,” I said, “no one can just ‘carve them out.’ ”
Murphy told me the Lottery Commission had hired John Tarantino, a top Providence lawyer, to analyze its constitutional status under the amendment, and Tarantino’s preliminary conclusions supported keeping legislators on those two boards.
I reminded Murphy no other states had sitting legislators or legislative appointees holding a majority of seats on executive boards. I also told him his comments on Newsmakers had floored me: “You said — and you repeated — that you intended to carve the lottery out for special treatment. I hope you understand that since you brought this up, I need to make our case.”
“I hear you, Phil,” he said. “I’m just acting on the legal advice we’re getting. I think we need to clarify it at the Supreme Court.”
“With an advisory opinion?”
“With an advisory opinion.”
“Mr. Speaker,” I said, “briefs and oral arguments before the Supreme Court could take many months.”
“Our legal advice is strong,” Murphy said.
Holiday festivities had already begun. I asked him to hold off on his advisory opinion request until I could bring leaders from Common Cause to meet with him early in January. He agreed, and we wished each other Merry Christmas.
I spent the weekend drafting a letter to Murphy on behalf of Common Cause, reminding him of the written pledge that he and forty-four of his supporters in the House had signed as well as the historic statewide vote. I urged him “not to drag this disagreement out with a court test” and pressed him to lead the House in fulfilling its constitutional duty by passing the three omnibus bills the Senate had approved the previous June. More than six months had passed since those Senate bills went to the House Committee on Separation of Powers, which had met four times in September and October without even looking at them. Both the lottery and CRMC, I said, “carry vast fiscal and administrative responsibilities. Until their membership conforms to the constitutional amendments passed by the voters in November, their actions after January 1, 2005, in which legislative members and appointees participate will be of questionable legality.”
In his column on December 21, M. Charles Bakst noted that the Senate had approved legislation in 2004 that ended legislative appointments to scores of boards. “It is bizarre but typical,” Bakst wrote, “that this debate is being carried into the 2005 Assembly.” He added: “If Murphy thinks he really needs guidance on the lottery issue, my guess is that the court could provide it to him after deliberating for oh, maybe an hour. But it will take much longer than that for Murphy to recover from a public perception that he is trying to cling to an enclave of Assembly dominance long after the voters have made plain they want a change.”
Ed Achorn also weighed in, accusing Murphy and Montalbano of “a bait-and-switch” that he called “worse than disgraceful: It appears to be an attempt to usurp the voters’ basic right to self-government.”
Four days before Christmas, Gov. Carcieri sent Murphy a blistering public letter. “Your reversal is a breach of trust with the people of Rhode Island that has no basis in law,” Carcieri wrote. He vowed to “do everything in my power as the chief executive of this state to stop your attempt to derail separation of powers.”
Andrew M. Hodgkin, Carcieri’s executive counsel, struck me as the least pretentious lawyer in the State House. In his fifties — slim, with graying hair and wire-rimmed glasses — he moved through crowds of lobbyists and legislators without attracting attention. He wrote about complex subjects with precise clarity, and he avoided Carcieri’s provocative putdowns of those who disagreed with him. Hodgkin’s careful use of language gave the governor’s letters and veto messages quiet credibility, while his self-effacing service stood in stark contrast to Carcieri’s showmanship.
Hodgkin’s strategic use of the law appeared in a letter Carcieri sent to Senate President Joe Montalbano on January 5, 2005. The envelope conveyed résumés of eight Carcieri appointees to the Coastal Resources Management Council and six to the Lottery Commission. “Both boards serve critical state executive functions,” Carcieri wrote, and they might be unable to perform those functions without these new appointments. He asked Montalbano for prompt Senate confirmation, since both boards were scheduled to meet in less than three weeks.
Carcieri’s letter laid out his reasons. Newly approved sections of the Constitution disqualified legislators from exercising the kinds of executive powers inherent in the work of these two boards. Furthermore, as governor he was now responsible for appointing members of all boards that exercised executive powers, subject to advice and consent of the Senate.
While Carcieri began making appointments, members of the House began resigning from boards where they served. The speaker himself got off the Rhode Island Water Resources Board. In all, 36 Democrats stepped down, including Steven Costantino and Kenneth Carter from the Board of Governors for Higher Education and Paul Crowley from the Board of Regents for Elementary and Secondary Education.
But Murphy’s allies on the Lottery Commission — House Judiciary Chairman Robert E. Flaherty and Rep. William San Bento — submitted conditional letters with identical boilerplate. “Although I do not believe that I am currently a member of any board, commission, or other entity which exercises executive function, I hereby resign, effective immediately” from any that do. What did that mean?
Senate President Joseph Montalbano told reporter Liz Anderson that his members presumed they were off many boards, including the Lottery Commission.
Sheldon Whitehouse published a commentary entitled “Don’t trifle with separation of powers,” which insisted there were no exceptions to the new amendment. He reminded readers that the lottery board had been central to the debate for years, and not “some odd constitutional cousin off in the attic that no one was paying attention to while we fought — and voted — for separation of powers.” He also shredded arguments that the CRMC was an exception because of the General Assembly’s constitutional duty to protect the environment.
I spent that first weekend in January phoning the representatives, including Murphy, who had signed pledges to implement separation of powers. Few answered their phones, but I left messages on answering machines. I thanked them for putting the amendment onto the ballot and for their pledges to uphold it. I urged them to speak with Murphy about finishing what they had begun.
On January 10, two members of the Common Cause executive committee and I were to meet Murphy in his office. Daniel G. Siegel and Kevin J. McAllister were both skilled negotiators who understood the pressures that might be weakening Murphy’s spine.
We waited for an hour without word from the speaker, and McAllister finally had to leave. Siegel and I later entered the speaker’s office together and sat across from him at his vast desk. I watched Murphy at closer range than at any other time since he won the post two years earlier. His soft cheeks had aged, and his eyes looked as if he had not slept well. While we had been pressuring him to implement separation of powers, Murphy had been fighting for his political life. The Harrah’s casino proposal designed for his hometown had imploded, stirring doubts about his ability to manage. Since the summer, Rep. John J. DeSimone and maverick Democrats David A. Caprio and Rene R. Menard had been openly wooing members of Murphy’s faction. The tiny contingent of House Republicans had pledged to support DeSimone.
Murphy had been fighting to shed John Harwood’s mantle. A pair of boxing gloves autographed by Rhode Island’s world lightweight champion Vinny Pazienza hung near his door. “To my friend, the Speaker of the House,” Paz had written, “Stay strong!” Murphy had won re-election as speaker with a comfortable margin, but his eyes showed the price he had paid.
Dan Siegel pressed the case for prompt action on Mike Lenihan’s three omnibus Senate bills. “This isn’t rocket science,” he said dryly. “You could package these bills any way you like to get the job done. Our concern is time. You see the quorum problems already with the CRMC trying to rule on Champlin’s Marina.”
“Those Senate bills are dead now,” Murphy said. “This is a new session.”
“Of course,” I agreed. “But you could have your own versions introduced and instruct the committee to begin hearings.” I knew that might be hard for Murphy. Rep. Rene Menard, a leader of the insurrection against him, had introduced a virtual clone of one 2004 Lenihan restructuring bill, and I assumed the other two were in the pipeline.
Siegel moved to our second concern: we thought seeking an advisory opinion from the Supreme Court would only delay and distract. “The text of the amendment is unequivocal,” Siegel said. “Legislators cannot serve on boards that execute state laws. The Lottery Commission administers $1.48 billion each year, a clearly executive function. There’s no other state that puts legislators in charge of gambling operations. We’ve given you our research.”
“Have you?” Murphy asked. “I’d like to see that.” I pulled out a copy of Peter Hufstader’s chart comparing lottery and gambling boards — state by state, from Alabama to Wyoming — and slid it across his desk. Thirteen had no state lotteries, and seven operated lotteries under various departments of state government without a commission. Thirty states empowered an appointed board to operate their lotteries. “Of those,” I reiterated, “not one has even one legislator on the board that operates lotteries or casinos. On our Lottery Commission, six of nine members are sitting legislators.”
Only one other state allowed legislative appointees. The chart showed Connecticut’s thirteen-member Lottery Corporation with six, and Murphy spotted it. “What about Connecticut?” he asked. “They’re almost like us. So what’s wrong with our doing that?”
“Our voters approved a more robust appointments clause than Connecticut’s,” I said. “Our Article IX, Section 5 now says the governor ‘shall appoint all members of any board that exercises executive power under the laws of this state.’ ”
Murphy replied that Article VI, Section 15 specified that lotteries had to be “operated by the state,” and all were “subject to the prescription and regulation of the General Assembly.” He was convinced the earlier section on lotteries trumped the new appointments clause.
Three days later Paul Crowley introduced legislation that would abolish the Lottery Commission and transfer its duties to a “Division of State Lottery within the Department of Administration.” His co-sponsors included top lieutenants in Murphy’s leadership team. The bill authorized the governor to appoint a director with the advice and consent of the Senate. It listed specific duties for the director and proposed to create a new “Permanent Joint Committee on State Lottery,” which would provide oversight and recommend legislation regarding its operation.”
Many months earlier, Carl Bogus had proposed folding boards into executive departments, but some of us had thought that approach too radical. Now, as I studied Crowley’s bill, I thought we could not have designed anything better. The governor would control the executive duties, and the General Assembly would provide oversight. The legislature could still make major changes by passing laws that the governor could sign or veto.
But Bob Arruda blasted Crowley’s compromise. “I find the whole proposal outrageous,” he told reporters. “When it becomes imminent the legislature is going to lose control over the Lottery Commission, they now see fit to abolish it.” He dismissed Crowley’s proposal as “a violation of the intent and the spirit of the separation-of-powers amendment.”
January 18 felt like the coldest day of the winter. After a meeting in a downtown law office I walked through Waterplace Park toward the State House, alone on cobblestones where thousands flocked on summer nights for WaterFire. Ice from the receding tide coated uprights that held the empty braziers. My cell phone buzzed.
Kathy Gregg, calling from the State House, said Murphy had just issued an extraordinary written statement: the House would not seek an advisory from the Supreme Court. As I walked, she read me his comments: “While I still believe there are merits to the legal questions involved in this issue, I have reached this decision to expedite the implementation of separation of powers and to honor the will of the people.”
“Your reaction?” Gregg asked.
I said Murphy’s decision did not settle everything but opened the door for us to move forward with hearings on new legislation, including Crowley’s lottery bill. I said Murphy was taking a wise step that would let us start.
She asked why I thought Murphy had made this decision.
“I don’t want to speculate about his motives,” I said. “I think the constitutional case was clear in terms of what the amendment says. There’s no way and maybe no political will to carve out exceptions.”
Through bare branches the State House gleamed in January sunshine. Instead of a sidewalk along Francis Street, I chose the central brick pathway toward the broad marble steps. Far above were the windows of Murphy’s office where we had made our case a few days earlier. One floor down on the Senate side, I picked out the single window of Mike Lenihan’s tiny office, thankful for his quiet courage. His simile came back to me. He said separation of powers was like digging a canal — first the blasting, then the shoveling. Had we finished with the dynamite? Could we finally begin building?
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 32
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 31
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 33
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 34
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 35
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 30
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 29
- Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 25
- Secrets and Scandals: Secrets and Scandals - Reforming Rhode Island 1986-2006, Chapter 26
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 27
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 28
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 36
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 37
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 44
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 43
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 45
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 46
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 47
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 42
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 41
- Newport Manners & Etiquette: Secrets for A Successful Thanksgiving
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 38
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 39
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 40
- Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 48
