In re Advisory Opinion to the Governor

• Decision Date: 29 June 1999
• Docket Number: No. 97-572-M.P.,97-572-M.P.
• Citation: 732 A.2d 55
• Parties: In re: ADVISORY OPINION TO THE GOVERNOR (Rhode Island Ethics Commission — Separation of Powers).
• Court: Rhode Island Supreme Court

732 A.2d 55

In re: ADVISORY OPINION TO THE GOVERNOR (Rhode Island Ethics Commission — Separation of Powers).

No. 97-572-M.P.

Supreme Court of Rhode Island.

Decided June 29, 1999.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, GOLDBERG, and FLANDERS, JJ.

Anthony F. Cottone — A.C.L.U., Princeton, Joseph S. Larisa, Jr., Harris Weiner — Governor Almond, Providence, for plaintiff.

Joseph V. Cavanagh, Jr., Karen A. Pelczarski(Common Cause), Providence, Daniel A. Curran, James P. Marusak (Environment

Council of Rhode Island), Providence, Jay S. Goodman(General Assembly), Providence, Jeffrey B. Bile, Thomas Dickinson(Attorney General), Providence, Patrick T. Conley, Edward M. Fogarty(Senate), Providence, Robert Senville(Operation Clean Government), Rumford, John Tarantino(Rhode Island Bar Association), Providence, Lauren E. Jones(Rhode Island House of Representatives), Providence, Amelia E. Edwards(Rhode Island Ethics Commission), Providence, Brian Bishop, for defendant.

To His Excellency Lincoln C. Almond, Governor of the State of Rhode Island and Providence Plantations:

We have received from Your Excellency a letter dated November 20, 1997, wherein you have propounded to us pursuant to article 10, section 3, of the Rhode Island Constitution your request for our written opinion on the following questions:

"1) Does Article III, section 8 of the Rhode Island Constitution, which empowers the Rhode Island Ethics Commission to `adopt a code of ethics, including, but not limited to provisions on conflicts of interest, * * * [and] use of position' provide the Ethics Commission with the power to adopt Regulation 36-14-5014?

"2) Is the principle of separation of powers contained in the Rhode Island Constitution properly interpreted in the same fashion as it has been interpreted in the United States Constitution with respect to appointments, such that neither legislators, nor their appointees, may serve on any public body within the executive branch of state government, or state executive, public and quasi-public boards, authorities, corporations, commissions, councils or agencies except those which: (i) function solely in an advisory capacity; or (ii) exercise solely legislative functions?

"3) Does the separation of powers principle contained in the Rhode Island Constitution impose any limits whatsoever on legislative appointments to a public board or body (as defined above)?In particular, does the Constitution prohibit legislators and/or their appointees from constituting a majority of the membership of a public board or body?Does the Constitution prohibit appointment of sitting legislators to a public board or body?"

The questions propounded by Your Excellency stem from the approval of Regulation 36-14-5014 (Regulation 5014) by the Rhode Island Ethics Commission(ethics commission or commission).Regulation 5014 provides:

"Prohibited Activities — Members of the General Assembly — Restrictions on activities relating to Public Boards.

"(1) No member of the General Assembly shall serve as a member of a Public Board.No member of the General Assembly shall participate in the appointment, except through advice and consent as provided by law, of any other person to serve as a member of a Public Board.

"(2) For purposes of this regulation, `Public Board' means all public bodies within the executive branch of state government, and all state executive, public and quasi-public boards, authorities, corporations, commissions, councils or agencies; provided, however, that the foregoing definition shall not apply to any such entity which (i) functions solely in an advisory capacity, or (ii) exercises solely legislative functions.

"(3) The effective date of this regulation is July 1, 1999."

Procedural Background

In November 1986, the voters of this state approved an amendment to the Rhode Island Constitution to include an independent, non-partisan ethics commission to oversee ethics in state and local government.The amendment was subsequently incorporated into the Rhode Island Constitution as article 3, sections 7and8, which read as follows:

"Section 7.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.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."

We observe that section 7 casts light upon the scope of the authority and duties of the ethics commission by setting forth the expectations of the people of this state concerning the standards of ethical conduct that should guide and inform the actions of public officials.Moreover, section 7 tracks closely the meanings of the terms "ethic" and "ethics" as defined in Webster's Third New International Dictionary 780 (3d unabr. ed.1976):

"1. the discipline dealing with what is good and bad or right and wrong or with moral duty and obligation * * * 2a:a group of moral principles or set of values * * * (c) * * *: the principles of conduct governing an individual or a profession: standards of behavior."

The pertinent part of section 8 in respect to our analysis of Regulation 5014 is the mandate that 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."R.I. Const. art. 3, sec. 8.See generallyIn re Advisory Opinion to the Governor (Ethics Commission),612 A.2d 1, 2-5(R.I.1992)(detailing the history of the ethics commission).

On October 10, 1995, envisioning that its authority to promulgate "provisions on conflicts of interest" enabled it to adopt Regulation 5014, the ethics commission voted to issue the proposed draft code of ethics for public comment.The draft included proposed regulation 5.13A (later renumbered Regulation 5014).After a series of public hearings required by the Code of Ethics, G.L.1956 § 36-14-9(3), and the Administrative Procedures Act, G.L.1956 § 42-35-3, the ethics commission adopted the proposed code in May 1997, with an effective date of July 1, 1999.

Prior to its approval of Regulation 5014, the ethics commission sought the advice and opinion of its own executive director regarding the regulation's constitutional validity.The executive director, we are informed, advised the commission that the regulation appeared to be unconstitutional.The commission's legal counsel, we are also informed, declined to provide the commission with a legal opinion on Regulation 5014.Thereafter, the commission sought the advice of Professor Geoffrey C. Hazard(Professor Hazard) of the University of Pennsylvania, a nationally renowned scholar and authority in the field of ethics in government and ethics legislation.Professor Hazard agreed with the ethics commission's executive director and advised the commission that the regulation was of questionable constitutionality and that it "exceed[ed] the authority conferred on the Commission by the Rhode Island Constitution."Despite Professor Hazard's legal opinion and in the absence of any express indication that the regulation was in fact constitutional, the ethics commission nonetheless proceeded unanimously to adopt Regulation 5014.

In essence, the regulation prohibits any member of the General Assembly not only from serving as a member of any governmental public board or commission, but also bars the members of the Legislature from participating in the appointment process to those entities, except through advice and consent as provided by law.¹The effective date of the regulation was delayed until July 1, 1999, in order for the commission to request through Your Excellency an advisory opinion from this Court.At the commission's urging, Your Excellency via letter dated November 20, 1997, requested that this Court give its advisory opinion on the constitutionality of Regulation 5014 pursuant to the Rhode Island Constitution, article 10, section 3, which allows the governor to request advisory opinions.In response, this Court issued a November 26, 1997 order requesting briefs from proponents and opponents of the regulation.Thirteen briefs were filed by interested parties.The Court heard oral argument on November 10, 1998.We now address these questions.

Propriety of the Request

Pursuant to article 10, section 3, of our State Constitution, this Court is required to give its written opinion upon any question of law whenever requested to do so by the Governor or by either chamber of the General Assembly.We have previously interpreted that constitutional mandate as requiring our response to your Excellency's request only "when the question or questions propounded `concern the constitutionality of existingstatutes which require implementation by the Chief Executive,'"In re Advisory from the Governor,633 A.2d 664, 666(R.I.1993)(emphasis added), and have a bearing upon a present constitutional duty awaiting performance...