Former Councilman Swain fined by Ethics Commission
After almost five years, the state Ethics Commission accepted a negotiated settlement with former Town Council Vice President David Swain involving a $750 fine on charges that he voted improperly in 1999 and 2000.
Four years earlier, the commission found probable cause on five charges as a result of its staff investigation into citizen complaints that Swain acted improperly when he voted on harborrelated issues. The conflict-ofinterest issue arose because at the time the complaints were made Swain, the owner and operator of Ocean State Scuba, had business interests in William Munger’s Conanicut Marine Services and in the Jamestown & Newport Ferry service.
The case had been pending since Nov. 1, 2000. Swain was a council member from 1999 to 2003, and then did not seek a third term.
Ordinarily, the Ethics Commission rules on cases in less than a year, but the Swain case was among several that took much longer, in part due to changes within the commission itself, its staff, and some budgeting shortfalls. A lesser delay was attributed at one time to a scheduling conflict with Swain’s attorney, Lauren Jones.
Swain did not respond to messages left by the Jamestown Press in recent days asking him to comment on the commission’s decision.
The maximum penalty could have been a fine of up to $25,000 on each violation, the return of any unjust enrichment, and removal from office. The Ethics Commission prefers a voluntary settlement in any complaint to avoid the cost of a formal adjudicative hearing.
According to the commission, Swain took part in council discussions and voted on several issues after the charges were filed and after the Ethics Commission had ruled a number of times that he should not vote because of his business interests with both companies.
Those rulings were issued after Swain himself asked the commision for a ruling on whether or not he had a conflict of interest, as Jamestown Town Solicitor Lauriston Parks had decided he did. Challenges were also raised by Town Council President David Long when he was president during part of Swain’s council term
According to Ethics Commission records, Swain argued that he refrained from voting when he saw a clear connection between a specific vote and his business interests, but he maintained the right to vote on secondary motions. The Ethics Commission staff documented by mid-point of the investigation that the precedent about conflict even on socalled secondary motions had been established through rulings on several previous cases.
Swain also maintained that townspeople expected and wanted him to vote on all matters, including those under scrutiny, according to his file at the Ethics Commission office.
The commission’s review of Swain’s council actions started with a complaint in late 2000 by 10 voters. The complainants, according to the ethics file, were: Spencer Potter, Stephanie Amerigian and Andrew Weicker, all of Narragansett Avenue; Patrick Bolger of Fore Royal Court; Nicholas Schaus and Howard Harding Jr., all of Walcott Avenue; Darcy Magrattan and James Estes of Clinton Avenue; Dorsey Beard of Blueberry Lane; and Arthur Milot of Highland Drive.
Their joint complaint stated, “It is essential in the intensity of the atmosphere (of growing pressures on the town’s East Ferry waterfront) that the town have confidence in the ability of its elected officials to perform without impropriety.”
Several complainants frequently contacted the Ethics Commission with concerns about the time it was taking for the panel to rule on the charges.
Bolger wrote that the delay “is a major disservice to everyone concerned.” Magrattan wrote about other questionable votes since the original complaint and stated that the commision’s decision making delay “discourages others, creates uncertainty and diminishes public faith.” Beard wrote, “too much time…and lack of resolution does a disservice” to all involved.
The board responded to each complaint that the Ethics Commission “is rebuilding after numerous vacancies in key positions . . . (and the need to) train new legal hires.”
The board’s findings of probable cause cited Swain for failing to recuse (exclude) himself from discussions, with or without voting, on matters involving certain harbor issues; and when Swain voted on:
• Expansion of use for the CMS marina at East Ferry.
• A proposed Zoning Ordinance amendment relative to CMS marina slips, dock space and moorings, including ferries and parking requirements.
• Proposed changes to fees for moorings and outhauls.
• Changes to the lease the town had with CMS for the use of two town-owned piers at East Ferry.
The investigative summary pointed out that Swain was elected to the Town Council in 1999. As a councilor, he served on the water and sewer commission, which from time to time dealt with harbor matters, and that as a councilor, he was also appointed council liaison to the Harbor Management Commission, on which he had a vote.
The investigative report stated Swain:
• Leased dock space at East Ferry wharf from CMS, owned by Munger, who also owned shares in Jamestown & Newport Ferry Company.
• Bought shares worth approximately $6,350 in the ferry company.
• Rented a boat slip for which fees are subject to town rates.
• Rented other space for his kayak business at Ferry Wharf.
• Worked as an independent contractor for CMS for diving work, such as removing rope from marina customers’ propellers; and
• Did mooring maintenance work for CMS.
CMS rents waterfront property from the town of Jamestown. The Town Council set rent based on the recommendation of the town Harbor Management Commission.
Swain himself asked for an ethics advisory shortly after his May, 1999 election and said at that time in an e-mail to the Ethics Commission that “I intend to honor your ruling whichever way you folks call it.” He recused himself in the first situation that arose, but shortly thereafter told the commission that “members of the town and the Town Council are requesting that I get involved somehow.” In another citation, the Ethics Commission file quotes Swain as having said, “Voters want all five (elected councilors) to vote.”
At one point, in detailing its advisory to Swain to recuse himself from voting, the Ethics Commission said that recusal means not only not voting on an issue, but also not participating in discussions as an official. The office noted that a person with a conflict “can speak from the audience at a public forum.”
The investigation cited several harbor-related votes and discussions in 1999 and 2000 in which Swain took part. The Ethics Commission noted that it told Swain in a letter and in person on July 13, 1999 that Swain “cannot vote on waterfront matters based on his business relationship with CMS.”
His file showed that Swain told the commission that his business interests were “minor financial interests.”
According to commission records Swain “had reason to believe or expect a conflict of interest when it is reasonably foreseeable. The probabilities must be greater than conceivable but the conflict of interest need not be certain to occur. It is reasonably foreseeable that changes in the town’s fee would result in financial impact (benefit or detriment) to CMS.”
Swain’s status for re-election did not impact any Ethics Commission decision, according to the commission’s staff. Before his term ended in 2003, Swain took part in talks and voted on additional issues that were similar to those the Ethics Commission defined as probable conflicts. Investigators said Swain told them that townspeople expected and wanted him to vote on all matters.
The investigation concluded that the original complaints were relevant. The commission said Swain violated the original ethics advisory, and he took part in discussions and votes by the council and by the harbor commission “despite his business associations.”