Johanna Harris Files Ethics Complaints Against Smiley and Simon

A member of the public observes that the Rhode Island Ethics Commission has failed to enforce a key provision of the state’s Code of Ethics. So she files a petition under the state’s Administrative Practices Act, asking the Commission to enforce the law. If the Commission refuses to enforce the law, she asserts, then it must use its rule-making authority to modify the law. Appearing before the Commission, she gets out two sentences before the Chairman cuts her off to tell her that she has no standing even to ask the Commission to enforce the law, so therefore the Commission doesn’t have to make any new rules. When other Commissioners inquire whether the Commission is in fact properly enforcing the law, the Chairman tells them that the question is not legally before the Commission. So the petition must be denied.

If you understood the foregoing paragraph, then you’ve taken your first big step toward understanding how the Rhode Island Ethics Commission works.

On April 26, 2016, the Rhode Island Ethics Commission considered Johanna Harris’ formal petition to enforce the state law requiring public officials to file financial disclosures annually. Citing the specific provision concerning municipal appointed officials with decision-making authority over at least $50,000 per year, Harris asked the Commission to require financial disclosures from Mayor Jorge Elorza’s two top deputies, Chief Operating Officer Brett Smiley and Chief of Staff Tony Simon.

At the Commission meeting, legal counsel Edmund L. Alves Jr.  maintained that a member of the public cannot petition a body to enforce its own regulations. Commission Chairperson Ross E. Cheit echoed Mr. Alves’ opinion, stating that arguments about the staff’s enforcement practices were “not up for discussion today.” When invited to comment, Ms. Harris began to say that the staff had clearly misinterpreted the law. Commissioner Cheit cut Ms. Harris off, stating that she was getting into matters about which she had no standing to speak to the Commission.

In response to a question about the $50,000 provision from Gov. Raimondo’s recent appointee  Timothy P. Murphy, Commissioner Cheit interjected that Dr. Murphy was not addressing the need for new rule-making, but only how the existing law should be applied. That’s “not the question before us.” When recent appointee Marisa A. Quinn inquired how a member of the public could seek to compel the Commission to enforce the law, Prof. Cheit responded that one could file a complaint. The Commission then voted unanimously to deny Ms. Harris’ petition.

On April 29, 2016, Ms. Harris filed separate complaints against Mr. Smiley and Mr. Simon, alleging that they had violated the Code of Ethics. On May 4, the Commission’s Executive Director Kent A. Willever referred both complaints (2016-3 and 2016-4) to the full Commission. Copied below is the cross-referenced text of Ms. Harris’ complaint concerning Mr. Smiley.

 

Complaint to the Rhode Island Ethics Commission Against Brett Smiley for Violation of R.I.G.L. § 36-14-16(a)
Complainant: Johanna Harris

1. This is a formal complaint against Brett Smiley, Chief Operating Officer, City of Providence, for violation of the Rhode Island Code of Ethics, specifically for failure to file a timely financial disclosure for the year 2014, as mandated by R.I.G.L. § 36-14-16(a).

Relevant Statutory Provisions and Commission Regulations

2. R.I.G.L. § 36-14-16(a), as amended, states in pertinent part:

On or before the last Friday in April of each year, the following officials and employees subject to this code of ethics shall file with the commission a financial statement complying with the requirements of this chapter. … (5) All municipal appointed officials whose official duties and responsibilities include exercising decision-making authority over the expenditure of more than fifty thousand dollars ($50,000) in public funds in any fiscal or calendar year, … (Emphases added.)

3. R.I.G.L. § 36-14-2(9) defines a “municipal appointed official” as “any officer or member of a … municipal agency as defined herein … who is appointed by or through the … highest official of … municipal government.” R.I.G.L. § 36-14-2(8)(ii) defines a “municipal agency” broadly to include any “department, division, agency, commission, board, office, bureau, authority, quasi-public authority…”
4. Commission Regulation 1002(a)(2) states:

If the Complaint contains no defect as to form, it shall be reviewed by the Executive Director or designee to determine whether or not the Complaint alleges facts sufficient to constitute a knowing and willful violation of the Code of Ethics, who shall forward the Complaint to the Commission for review at an initial determination. (Emphasis added.)

Allegations

5. Brett Smiley is Chief Operating Officer of the City of Providence. Mayor Jorge O. Elorza appointed Mr. Smiley to this post on December 29, 2014. (Exhibit #1, at 6) Mr. Smiley is a municipal appointed official within the meaning of R.I.G.L. § 36-14-2(9).
6. According to official documents issued by the City of Providence, the office of the Chief Operating Officer has major decision-making authority over 23 offices within the City’s organizational hierarchy, including the Director of Economic Development, Finance Department, Director of Operations, Public Works Department, Tax Assessor Office, and the Human Resources Department. (Exhibit #2) These departments collectively have authorized budgetary expenditures in the millions of dollars annually. Accordingly, Mr. Smiley’s official duties and responsibilities include exercising decision-making authority over the expenditure of more than fifty thousand dollars ($50,000) in public funds in any fiscal or calendar year.
7. In an April 17, 2015 submission of the names of public officials who were required to file financial disclosures for the calendar year 2014, Providence Municipal Integrity Officer Kathryn Sabatini explicitly listed Mr. Smiley’s name and title. (Exhibit #1, at 6) In a cover email to Ethics Commission Administrative Officer Michelle Berg, attorney Sabatini wrote, “As we discussed, I wanted to send along by email additional City of Providence officials who should be filing financial disclosure forms.” (Exhibit #1, at 1) On the same day, Ms. Berg responded, “I have quickly reviewed your attachments and it looks as though all of the relevant information is there. I hope you don’t mind however that I will have to wait until the week of the 27th to take action on adding these filers.” (Exhibit #1, at 1)
8. In the City’s subsequent November 13, 2015 submission of the names of public officials who were required to file financial disclosures for the calendar year 2014, Mr. Smiley’s name and title continued to appear. (Exhibit #3) In a cover email addressed to Commission Staff Attorney Jason Gramitt, Ms. Sabatini stated, “Please see attached. We believe that the individuals on the list should be filing.” (Exhibit #3, at 1)
9. After a November 24, 2015 meeting between Gramitt, Berg and Sabatini, Mr. Smiley’s name was improperly dropped without explanation from the list of required filers.
10. At some point in time prior to the November 24, 2015 meeting, the Commission had sent Mr. Smiley a letter informing him that he was required to file. In November 24 correspondence to Ms. Berg, attorney Sabatini wrote, “I will shred Brett’s letter…” (Exhibit #4) At a February 23, 2016 public meeting of the Ethics Commission, attorney Gramitt acknowledge that the Commission had indeed sent Mr. Smiley a letter informing him of his obligation to file.
11. On November 30, 2015, Ms. Berg wrote to Ms. Sabatini, “No letters have gone out… I am awaiting final word from you as to whether all folks left on the list have major decision-making authority over $50,000.” (Exhibit #5. Emphasis added.)
12. On January 7, 2016, I wrote the Mr. Gramitt, contending that the Code of Ethics in fact required Mr. Smiley to file a financial disclosure. I noted, in particular, “In the event that I file a formal complaint to the Ethics Commission alleging that certain individuals on the Mayor’s Staff have violated R.I.G.L. § 36-14-16(a)(5), I trust that the Executive Director, acting in accordance with Commission Regulation 1002(a)(2), will forward my complaint to the Commission for review rather than attempt to unilaterally dismiss the complaint before it is properly considered by the Commission.” (Exhibit #6, at 2)
13. By the afternoon of January 7, 2016, Gramitt, Berg and Sabatini had arranged for Mr. Smiley’s voluntary filing. (Exhibit #7)
14. Mr. Smiley filed a “voluntary” disclosure on January 13, 2016. (Exhibit #8)
15. Mr. Smiley did not file a financial disclosure for the year 2014 by the April 24, 2015 deadline.
16. Mr. Smiley’s filing a “voluntary” disclosure on January 13, 2016 does not constitute compliance with R.I.G.L. § 36-14-16(a). If Mr. Smiley’s “voluntary” disclosure constituted compliance, then every other official covered by R.I.G.L. § 36-14-16(a) could similarly exercise his own discretion to “voluntarily” file from one year to the next without adhering to the deadline specified in the statute.
17. Pat assertions that the legislature in 2004 wanted to reduce the number of municipal employees subject to the financial disclosure requirement do not nullify section (5) of R.I.G.L. § 36-14-16(a) or somehow relieve Mr. Smiley from his obligation to comply with the plain language of the statute.
18. Inasmuch as this complaint alleges facts sufficient to constitute a knowing and willful violation of the Code of Ethics, the Executive Director is required under Commission Regulation 1002(a)(2) to forward this complaint to the Commission for its review. The Executive Director has no discretion to unilaterally dismiss this complaint before it is properly considered by the Commission.

Respectfully submitted,                        Johanna Harris