Advisory Opinion to Governor (Ethics Com'n), In re

• Citation: 612 A.2d 1
• Decision Date: 10 June 1992
• Docket Number: No. 91-577-M,91-577-M
• Parties: In re ADVISORY OPINION TO the GOVERNOR (ETHICS COMMISSION). P.
• Court: Rhode Island Supreme Court

Page 1

612 A.2d 1

In re ADVISORY OPINION TO the GOVERNOR (ETHICS COMMISSION).

No. 91-577-M.P.

Supreme Court of Rhode Island.

June 10, 1992.

Judith Colenback Savage, Office of the Governor, William P. Robinson, III, Edwards & Angell for Governor.

Gary Yesser, Ethics Com'n, Rae B. Condon, James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., Aaron L. Weisman, Sp. Asst. Atty. Gen., A. Gregory Frazier, ACLU, Lauren E. Jones, Common Cause, Edward M. Fogarty, House of Representatives, Frederick Cass, Michael K. Marran, Providence, amici curiae.

To His Excellency Bruce G. 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 three specific questions relating to the so-called ethics amendment as contained in article 3, sections 7 and 8. The members of this court have been asked to determine (1) whether article 3, section 8, of the Rhode Island Constitution confers upon the Rhode Island Ethics Commission (commission) the power, independent of the Rhode Island General Assembly, to enact substantive ethics laws governing all elected and appointed officials and employees of state and local governments, boards, commissions, and agencies or whether instead the commission derives its power to regulate from legislative enactments of the General Assembly; (2) whether article 3, section 8, divests the General Assembly of some or all of its legislative powers to enact ethics laws governing public officials and employees and instead vests that power in the commission; and (3) whether article 3, section 8, is valid under the United States Constitution and consistent with the Rhode Island Constitution if it is interpreted to confer upon the commission the power to enact substantive ethics laws governing public officials and employees, independent of and/or to the exclusion of the General Assembly.

In circumstances similar to those in Rhode Island's most recent history, the years preceding this state's 1986 constitutional convention were marked by scandal and corruption in both state and local government. As a result the overwhelming majority of Rhode Island's citizens were at the very least distrustful of their elected and appointed officials and of government as a whole. In response to public outcry for reform at all levels of government, an ethics committee was set up as part of the constitutional convention and given the task of examining unethical governmental conduct and proposing measures to bring about ethical reform that would ultimately restore the public trust.

The ethics committee deliberated throughout the spring of 1986. On June 26, 1986, with the committee's recommendations before them, the convention delegates voted to submit to the electorate Resolution No. 86-00060 (Sub A) regarding ethics in state government. ¹ An official voters' guide explaining fourteen ballot questions, including question 6 pertaining to ethics in government, was sent to each voter household. ²

In November 1986 the electorate of the State of Rhode Island spoke out and approved the ethics amendment whereby an independent non-partisan ethics commission would be formed to oversee ethics in State Government. Thereafter the ethics amendment was made part of the Rhode Island Constitution as article 3, sections 7 and 8. Specifically section 7 states:

"Ethical Conduct.--The people of the State of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage. Such persons shall hold their positions during good behavior."

Section 8 provides:

"Ethics Commission--Code of Ethics.--The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment."

In addition to voting on the fourteen ballot questions, the electorate also voted to reaffirm the existing provisions of the Rhode Island Constitution. Among the provisions reaffirmed was article 6, section 10, which provides for the continuation of previous powers of the General Assembly and states: "The general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution."

The General Assembly was directed by article 15, section 4, to adopt implementing legislation for article 3, sections 7 and 8, on or before June 1, 1988. ³ In response to the constitutional directive, in 1987 the General Assembly terminated the existence of a pre-existing Conflict of Interest Commission and duly established the fifteen member Rhode Island Ethics Commission. The commission members are appointed by the Governor, ten of whom are selected from lists submitted by the General Assembly. The General Assembly also sought to establish the Rhode Island Code of Ethics in Government as provided in G.L.1956 (1990 Reenactment) chapter 14 of title 36. ⁴

On December 17, 1987, the commission adopted and thereafter enforced the code of ethics as set forth in chapter 14 of title 36. However, on August 22, 1991, the commission voted to adopt a resolution declaring that it intended to change the provisions of the ethics code without approval by the General Assembly. ⁵ Shortly thereafter, pursuant to the Administrative Procedures Act (APA) as contained in G.L.1956 (1988 Reenactment) chapter 35 of title 42, the commission published a notice of intention to amend the existing code of ethics and to conduct a public hearing on November 6, 1991. ⁶

The commission's attempted adoption of its own rules and regulations drew sharp criticism from a number of groups. On November 5, 1991, in response to the commission's notice of intent, the Office of the Governor, pursuant to article 10, section 3, of our Constitution submitted a request for an advisory opinion to this court regarding the propriety of the commission's intended action. The Governor's request set forth three questions of law for this court to address. First, the Governor asked

"[w]hether Article III, Section 8 of the Rhode Island Constitution confers upon the Rhode Island Ethics Commission the power, independent of the legislature to enact substantive ethics laws governing all elected and appointed officials and employees of state and local government, boards, commissions and agencies or whether, instead, the Rhode Island Ethics Commission derives its power to regulate from legislative enactments of the Rhode Island General Assembly."

Second, he asked

"[w]hether Article III, Section 8 of the Rhode Island Constitution divests the General Assembly of some or all of its legislative power to enact ethics laws governing public officials and employees and instead vests that power in the Rhode Island Ethics Commission."

Last, he asked

"[i]f Article III, Section 8 of the Rhode Island Constitution is interpreted to confer upon the Rhode Island Ethics Commission the power to enact substantive ethics laws governing public officials and employees, independent of and/or to the exclusion of the legislature, is that constitutional amendment valid under the United States Constitution and consistent with the Rhode Island Constitution."

Notwithstanding widespread opposition, on November 14, 1991, the commission passed a number of new ethics provisions. ⁷ Thereafter on November 27, 1991, the commission filed the adopted resolutions with the Office of the Secretary of State to become effective on December 18, 1991.

Briefs were submitted by both the Governor's office and the commission. In addition this court requested that amicus curiae briefs be submitted by all interested parties. In response, additional briefs were submitted by Joseph DeAngelis, speaker of the House of Representatives; the Department of Attorney General; the American Civil Liberties Union; Common Cause of Rhode Island; and Rae B. Condon, a member of the Rhode Island Bar Association.

I

With respect to the first question of law propounded to this court--whether article 3, section 8, confers upon the commission the power to enact substantive ethics laws independent of the General Assembly--the Governor and other opponents of the commission's power aver that although the constitutional amendment provided for the creation of a nonpartisan ethics commission with the power to enforce ethics laws, it did not provide the commission with the power to make its own substantive ethics laws. Rather they contend that the constitutional amendment merely conferred upon the commission the power to enforce, not enact, a code of ethics.

In support of the foregoing assertion, opponents refer to the language contained in article 15, section 4, which empowered the General Assembly to adopt implementing legislation invoking the constitutional provisions contained in article 3. Article 15, section 4, they contend, is to be construed as conferring upon the General Assembly the power to create the commission, an ethics code, and the commission's enforcement powers. Further, opponents note that in ratifying the State Constitution, the 1986 electorate voted to reaffirm the General Assembly's plenary legislative power, as provided in article 6, section 10, to...