509 A.2d 453 (R.I. 1986), 83-381, Carmody v. Rhode Island Conflict of Interest Com'n

Docket Nº:83-381-M.P., 84-414-M.P.
Citation:509 A.2d 453
Opinion Judge:SHEA, Justice.
Attorney:Joseph R. Palumbo, Jr., Palumbo Galvin & Boyle, Middletown, Frank J. Cenerini, Asst. City Solicitor for City of Warwick, for petitioner. Teresa M. Quinn, Quinn & Quinn, Providence, for respondent.
Judge Panel:KELLEHER, concurring.
Case Date:May 20, 1986
Court:Supreme Court of Rhode Island

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509 A.2d 453 (R.I. 1986)




Carol P. LUBY



Nos. 83-381-M.P., 84-414-M.P.

Supreme Court of Rhode Island.

May 20, 1986.

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Joseph R. Palumbo, Jr., Palumbo Galvin & Boyle, Middletown, Frank J. Cenerini, Asst. City Solicitor for City of Warwick, for petitioner.

Teresa M. Quinn, Quinn & Quinn, Providence, for respondent.


SHEA, Justice.

These consolidated petitions for certiorari seek review of two Superior Court decisions affirming separate decisions and orders of the Rhode Island Conflict of Interest Commission (commission). The commission found that the petitioners, Thomas M. Carmody and Carol P. Luby, had violated

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the Rhode Island Conflict of Interest Law and it assessed fines against each of them pursuant to the civil-enforcement provision in the Conflict of Interest Law, G.L.1956 (1984 Reenactment) § 36-14-13. The principal issue before the court is whether the violations were committed knowingly and wilfully. We affirm the decisions of the Superior Court but vacate the assessment of the fine against Luby.

For the sake of clarity, we shall set out the underlying facts relating to each petition separately, beginning with petitioner Carmody. Under § 36-14-15, all state or municipal elected or appointed officials must file an annual financial statement with the commission. 1 Carmody was appointed by the Narragansett Town Council to the Narragansett Redevelopment Agency (agency) on March 5, 1979. At that time, he was already the chairperson of the Rhode Island Higher Education Assistance Authority (RIHEAA or authority) and was contesting a commission advisory opinion ruling that authority members were subject to the filing requirement of § 36-14-15. Before his appointment to the redevelopment agency, Carmody asked the Narragansett Town Council president whether, as a member of the agency, the Conflict of Interest Law would require him to file financial statements with the commission. The town council president told Carmody about this court's decision in Little v. Conflict of Interest Commission, 121 R.I. 232, 397 A.2d 884 (1979), in which we held that members of local redevelopment agencies were not subject to the Conflict of Interest Law. Carmody was subsequently appointed to the redevelopment agency. In May of 1979, after the Little decision and approximately two months after his appointment to the agency, the Conflict of Interest Law was amended to subject members of municipal agencies and authorities to its provisions.

The Narragansett town clerk notified the commission in a letter dated May 24, 1979, that Carmody had been appointed to the redevelopment agency, and this letter listed Carmody's home address. The commission mailed a financial-statement form to Carmody at this address on July 7, 1979. He did not complete and file the form.

On March 14, 1980, and March 18, 1981, the commission mailed financial-statement forms for the 1979 and 1980 calendar years, respectively, to Carmody's business address. On December 29, 1980, and August 19, 1981, the commission sent delinquency notices to Carmody at this same address. The delinquency notices were form letters indicating that the addressee was required to file a financial statement for the appropriate calendar year and that failure to do so might result in the assessment of civil penalties. Neither the financial statements nor the delinquency notices specifically referred to Carmody's positions on the redevelopment agency or the RIHEAA.

The commission brought a complaint against Carmody on April 22, 1982, for failure to file the financial-statement form, and a hearing was held before the commission. Carmody testified at the hearing and did not dispute having received the financial-statement forms and delinquency notices. He stated, however, that until the spring of 1982 he had assumed that the correspondence related to his membership on RIHEAA and that, because he believed RIHEAA members to be exempt from the filing requirements, he had referred the matter to the authority's counsel. In July of 1979 Carmody authorized him to respond accordingly to the commission.

At the hearing, Carmody explained that the issue concerning his duty to file as an authority member was the subject of pending litigation and that this was the reason that he

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had not filed the subsequent financial statements. 2 He had referred these forms and notices to the authority's attorney as well. Carmody stated that he did not know that the law had been amended to subject municipal-redevelopment-agency members to its requirements until he received the complaint from the commission.

The commission found that Carmody, as a member of the Narragansett Redevelopment Agency, was required to file 1980 and 1981 financial statements for the 1979 and 1980 calendar years. It concluded that Carmody had knowingly and wilfully failed to file the financial statements in violation of § 36-14-15 and the commission's regulations No. 1001 and 1003. Carmody was ordered to file the statements immediately and to pay a fine of $150.

Subsequently, Carmody filed this administrative appeal in the Superior Court, alleging that under G.L.1956 (1977 Reenactment) § 42-35-15(g)(2), the commission's decision and order was beyond the scope of its statutory authority. Carmody asserted that he did not knowingly and wilfully fail to file the required forms, and therefore, the commission had no authority to order compliance and assess the fine.

The trial justice thoroughly examined the record and discussed other courts' treatment of the "knowing and wilful" standard as it is used in the civil context because it is an issue of first impression in this jurisdiction. The trial justice found that "the record in this case demonstrates clearly that [Carmody] knowingly and wilfully failed to file financial statements as required by the law. Consequently, the commission, in ordering compliance and assessing penalties against him was acting within the scope of its statutory authority." The trial justice affirmed the commission's decision and order.

The facts in the case of Luby are quite different. The commission found that Luby, a member of the Warwick Board of Canvassers (board), had violated §§ 36-14-4(a) and 36-14-4(e)(1) of the Conflict of Interest Law because she certified her own nomination papers as a candidate for the Warwick Republican Ward One Committee. One of the issues before us on her appeal is identical to the issue in Carmody's case, that is, whether her alleged violation of the Conflict of Interest Law was of a knowing and wilful character.

At the time of the events giving rise to Luby's appeal, Carol P. Luby was a member of the Board of Canvassers in the city of Warwick and had held that position since 1976. The board of canvassers comprises the officials who are responsible for certifying the validity of signatures on primary nomination papers. 3 The board members, however, rely on a clerical staff to do the actual checking of every signature on the nomination papers against the voter-registration list. The members of the board themselves only spot check the signatures.

In 1982 Luby became a candidate for election to the City of Warwick Republican Ward Committee for Ward One. She caused to be filed with the board of canvassers upon which she still served, primary nomination papers in support of her candidacy for election to the Republican ward committee.

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In her capacity as a member of the board, Luby certified that the signatures contained on these papers were "names of qualified electors in the City of Warwick and qualified to vote in the Republican Primary." Luby signed one of those papers not only as a qualified elector but also as a member of the board of canvassers; in fact, she certified herself as a qualified elector.

On another of her nomination papers, Luby made affidavit that the signatures were placed on the nomination papers in her presence. She also certified, as a member of the board, that the signatures were those of qualified electors. The nomination papers containing Luby's name also contained other...

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