Advisory From the Governor, In re

• Decision Date: 15 November 1993
• Docket Number: No. 93-120,93-120
• Citation: 633 A.2d 664
• Parties: In re ADVISORY FROM THE GOVERNOR. M.P.
• Court: Rhode Island Supreme Court

Page 664

633 A.2d 664

In re ADVISORY FROM THE GOVERNOR.

No. 93-120 M.P.

Supreme Court of Rhode Island.

Nov. 15, 1993.

William P. Robinson, III, Elizabeth Murdock Myers, for Governor's Office.

Lauren S. Zurier, Aaron Weisman, for Office of the Atty. Gen.

Gary Yesser, Ina Suuberg, for RI Ethics Com'n.

Anthony F. Cottone, for ACLU.

Peter McGinn, Gregory Pastore, Providence, for Marsha Reback et al.

Lauren Jones, Caroline Cook Cornwell, for Common Cause.

Bruce Pollock, Michael DiBiase, Providence, for RI Bar Ass'n.

To His Excellency Bruce Sundlun, Governor of the State of Rhode Island and Providence Plantations:

We have received from Your Excellency a request for our written opinion in accordance with article 10, section 3, of the Rhode Island Constitution on four specific questions. The members of this court have been asked to determine (1) whether the provisions contained in G.L.1956 (1990 Reenactment) § 36-14-5, subsections (n) and (o ), as amended by P.L.1992, ch. 436, § 1, are constitutional under section 1 of the Fourteenth Amendment to the United States Constitution and under article 1, section 2, of the Rhode Island Constitution "and/or seriously impinge upon the ability of the members of the executive, legislative, or judicial branches to perform" their duties; (2) whether the provisions contained in § 36-14-5(a) are constitutional under section 1 of the Fourteenth Amendment to the United States Constitution and under article 1, section 2, of the Rhode Island Constitution "and/or seriously impinge upon the ability of the members of the executive, legislative, or judicial branches to perform" their duties; (3) whether the exercise by the Ethics Commission of the authority granted to it under the Code of Ethics, § 36-14-11, specifically Ethics Advisory No. 13 and Ethics Advisory Opinion No. 92-30, are constitutional under section 1 of the Fourteenth Amendment to the United States Constitution and under article 1, section 2, of the Rhode Island Constitution "and/or seriously impinge upon the ability of the members of the executive, legislative, or judicial branches to perform" their duties; and (4) whether the Ethics Commission Regulations 36-14-5006, 36-14-5007, and 36-14-5008 are constitutional under section 1 of the Fourteenth Amendment to the United States Constitution and under article 1, section 2, of the Rhode Island Constitution "and/or seriously impinge upon the ability of the members of the executive, legislative, or judicial branches to perform" their duties.

Briefs were submitted by both the Governor's office and the Attorney General's office. In addition, amicus curiae briefs were submitted by the following interested parties: the Rhode Island Ethics Commission, Common Cause of Rhode Island, the American Civil Liberties Union, and the Rhode Island Bar Association. Marcia B. Reback, president of the Rhode Island Federation of Teachers and a member of the Rhode Island Retirement Board, filed a brief as an intervenor.

I The Propriety of the Request

We must first address a preliminary procedural issue that will clarify our rendition of this advisory opinion. This court issues an advisory opinion to the Governor when the question or questions propounded "concern the constitutionality of existing statutes which require implementation by the Chief Executive." In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1319 (R.I.1986). The question or questions propounded must have some relationship to the official duties of the branch propounding the question. Id. This court avoids issuing advisory opinions in circumstances not constitutionally mandated. Id. We only advise the Chief Executive when the question or questions propounded have a "bearing upon a present constitutional duty awaiting performance * * * ." Id.

The questions propounded by the Governor mainly concern his ability to appoint qualified individuals to certain government positions. "[W]e find that no power of appointment is vested in the governor, save to fill vacancies temporarily existing * * * ." Election of Officers by the Senate, 28 R.I. 607, 616, 69 A. 555, 559 (1908). See R.I. Const., art. 9, sec. 5, and art. 4, sec. 4. "[O]ur own constitution does not make appointment to office an executive function * * * ." 28 R.I. at 618, 69 A. at 560. Although many of our laws creating state agencies, commissions, and boards require the Governor to appoint some of the members to those bodies, that power is not a general per se enumerated constitutional duty of the Governor. Cf. In re Advisory Opinion to the Governor, 504 A.2d 456 (R.I.1986) (our advisory opinion citing Rhode Island Constitutional provision that directs the Governor to appoint officers to fill vacancies temporarily existing ). Upon a review of the questions before us, it is evident that the Governor has no present constitutional duty awaiting performance. In spite of the procedural deficiency ingrained in this request, we shall exercise our discretion and waive the defect, except as noted in parts III and IV of this advisory opinion, because this is an instance in which the public and constitutional importance is paramount. See In re Advisory Opinion (Chief Justice), 507 A.2d at 1319-20.

"Questions of ethics become ones of coloring inside the lines." Beth Nolan, Regulating Government Ethics: When It's Not Enough to Just Say No, 58 Geo. Wash. L.Rev. 405, 407 (1990).

"It appears to me that in Ethics, as in all other philosophical studies, the difficulties and disagreements, of which history is full, are mainly due to a very simple cause: namely to the attempt to answer questions, without first discovering precisely what question it is which you desire to answer." George Edward Moore, Preface to Principia Ethica, (1903).

A particular profession or occupation should not carry a stigma simply as a result of public perception, for it is the human spirit that is common to all, and that spirit can take on different faces, both praiseworthy and contemptible. It is not a duty of this court to mandate morals; that is a duty of society. Self-respect, honor, and integrity are inherent in the mission of reacting to society's expectations for its public officials. Society's expectations mirror either incompatible disagreements between how one is expected to act and how one actually acts or continual hardships in discerning the theoretical requirements for what is defined as ethical. "Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law." Nolan, 58 Geo. Wash. L.Rev. at 406 n. 4.

The questions propounded to us by the Governor concern "the appearance of impropriety" of certain government officials. Perception and the appearance of impropriety are not always truth or reality. Any ethical mandate or regulation must not ignore history's unyielding tug of war between the world as it is and the world as men and women perceive it. Society is inundated with the pious mouthings of statements and opinions that are in sharp conflict with the behaviors sanctioned. We are reminded that the "appearance of impropriety alone [may be] 'simply too slender a reed on which to rest a [decision] * * *.' " Olivier v. Town of Cumberland, 540 A.2d 23, 27 (R.I.1988). As we begin our constitutional analysis, we are mindful of the impact, in the present legal, political, and social environments, that our decision will have.

II The Revolving-Door Question

The Governor first challenges § 36-14-5, subsections (n) and (o), as well as Ethics Commission Regulations 36-14-5006 and 36-14-5007. Section 36-14-5(n) provides:

"No state elected official, while holding state office and for a period of one (1) year after leaving state office, shall seek or accept employment with any other state agency, as defined in § 36-14-2(4)(a), other than employment which was held at the time of the official's election or at the time of enactment of this subsection, except as provided herein.

"Nothing contained herein shall prohibit any general officer or the general assembly from appointing any state elected official to a senior policy-making, discretionary, or confidential position on the general officer's or the general assembly's staff, and in the case of the governor, to a position as a department director; nor shall the provisions herein prohibit any state elected official from seeking or accepting a senior policy-making, discretionary, or confidential position on any general officer's or the general assembly's staff, or from seeking or accepting appointment as a department director by the governor.

"Nothing contained herein shall prohibit a state elected official from seeking or being elected for any other constitutional office.

"Nothing contained herein shall prohibit the Rhode Island Ethics Commission from authorizing exceptions to this subsection where such exemption would not create an appearance of impropriety."

Section 36-14-5(o ) places similar restrictions on persons holding senior policy-making, discretionary, or confidential positions on the staff of any state-elected official or of the General Assembly. Subsection (o ) contains exclusions similar to those noted under subsection (n) and adds an exclusion for those persons holding senior policy-making, discretionary, or confidential staff positions with a minimum of five years of uninterrupted state service.

Regulation 36-14-5006 provides:

"No elected or appointed official may accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such...