Why Lynch-Prata’s Revolving Door Argument is Flawed: Guest MINDSETTER™ Sen. Sheehan

Wednesday, June 10, 2020

Senator James Sheehan - Guest MINDSETTER™

 

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Senator Sheehan

A powerful Rhode Island State Senator appears on the verge of breaching revolving door rules to gain a seat on the Rhode Island Supreme Court.

Our state is beautiful, yet small. Our residents are bound by close ties of family and friendship. The downside to this familiarity is that these same ties may shield public officials from accountability and provide fertile field for governmental favoritism, insider dealing and corruption.

This was the case back in the 1970s and 1980s when government officials, leveraging their powerful positions and political connections, helped themselves, family and allies to cushy state employment. Like clockwork, this favoritism and self-dealing led to corruption. Government officials, including numerous legislators, moved immediately and frequently into permanent state jobs and life-time judgeships, whether they merited it or not.  The good government group Common Cause blasted this unsavory and inherently unfair practice as the “revolving door.” The most notorious examples were found in our court system, and the resulting scandals undermined the public faith.   

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A groundswell of public support led by the Right Now! Coalition demanded reform.  A bevy of ethics laws and regulations were approved in 1991 and 1992.  Among them, both the Rhode Island Ethics Commission and the General Assembly established a mandatory one-year waiting period for state elected officials before they could “seek or accept” permanent state jobs, including judgeships.  This “cooling off” period closed and locked the revolving door.

However, the General Assembly insisted on exceptions. One notable exception, approved in 1992, reads: “Nothing contained herein shall prohibit a state elected official from seeking or being elected (emphasis) for any other constitutional office” (RIGL 36-14-5 (N)(03).  At the time of its passage, this exception appeared benign since voter approval would make it impossible for “elected” officials to manipulate the outcome of an election for say governor or secretary of state. 

For some legislators (many of whom are lawyers), one of the most sought after prizes is appointment to the bench.  A judgeship is a prestigious, lifetime post with a respectable salary along with enviable benefits, including lifetime pension at full pay.  Before long, legislators contemplated ways to pick the lock to re-open the revolving door.  However, since 1992, no sitting senator or representative has come close to doing so.   

Senate Judiciary Chairwoman Erin Prata Lynch recently announced that she would not seek re-election to the Senate.  Instead, she would seek appointment to a vacancy on the Supreme Court when Justice Gilbert Indeglia retires this month.  To do so, Senator Lynch Prata would need to be granted an exception to the one-year cooling-off period contained in the revolving door laws.

She properly asked the state Ethics Commission whether her action would violate the revolving door laws or Ethics Commission rules. Staff attorneys at the commission drafted a strong advisory opinion that by seeking or accepting this position without waiting a year she would violate revolving door prohibitions.

On June 2, her attorneys argued that she qualified for the aforementioned exception that allows elected officials to seek election to “any other constitutional office.” In a 5-to-2 vote, members of the Ethics Commission astoundingly rejected the legal opinion of its own in-house counsel. In effect, the Ethics Commission blew a gaping loophole in the revolving door prohibitions.

To be fair to Senator Lynch Prata, her qualities and qualifications for the Supreme Court are not in dispute here. However, the senator’s claim that she is excepted from the revolving door is. Specifically, she claims that since the RI Supreme Court is cited in the R.I. Constitution, that post must be considered a constitutional office. This would represent only one of two criteria that would qualify Senator Lynch Prata, an elected official, for an exception under RIGL 36-14-5 (N)(03). However, the second criterion, “being elected,” cannot be met since justices are no longer elected.  Since 1994, justices of the Supreme Court have been nominated by the Judicial Nominating Commission, appointed by the governor, and separately confirmed by the Senate and House of Representatives.  In short, the Supreme Court is not an elected post. Further, Senator Lynch Prata’s claim that she qualifies for the exception under the revolving door law does not appear to be supported by any known legislative intent, history or court opinion. 

I do not believe that this Ethics Commission will reverse its flawed decision of June 2nd. Moreover, I predict that Senator Lynch Prata will be selected as a finalist by the Judicial Nominating Commission. Therefore, it is now up to Governor Gina Raimondo to uphold the letter and the spirit of the revolving door laws, by appointing another Supreme Court nominee at this time. 

If the revolving door laws are allowed to be breached, coveted seats on the Supreme Court again will be targeted as objects of political horse-trading and backroom deals by Smith Hill insiders.  For all of those wishing to someday serve on the Supreme Court, advantage surely will go to the well-connected as opposed to those most deserving of the honor.  Inevitably, this will undermine the respect for, and credibility of the Supreme Court itself. Given the significant reach and impact of the high court’s decisions on our basic liberties and general social order, this prospect should make every Rhode Islander shudder! 

 

James C. Sheehan (Democrat) represents North Kingstown and Narragansett in the State Senate since 2000.  He is currently the Vice-chairman (and former Chairman) of the Rules, Government Ethics and Oversight Committee.  Senator Sheehan is not seeking re-election this year. 

 

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