Former ethics commissioner wants to see legislators held responsible
Jamestown’s Bill Harsch wants to keep the spotlight shining on a 2009 court decision that he says has gutted the powers of the state Ethics Commission and upended the people’s intentions to clean up government.
Harsch is calling on members of the Rhode Island General Assembly to voluntarily accept the jurisdiction of the Ethics Commission even though the state Supreme Court said representatives have immunity from complaints. Harsch says that leadership should not wait for another political scandal to outrage the public and further erode faith in the integrity of lawmakers.
“If they voluntarily put themselves under the Ethics Commission, they would increase the public’s confidence in the government,” said Harsch. “If not, the General Assembly looks less ethical.”
Harsch has been taking a break from public life after an unsuccessful bid for office last November. He was appointed to the Ethics Commission in 2008 by then-Gov. Donald Carcieri, but resigned when he decided to run for Town Council.
“I’m taking a break after some tough fights,” he said.
Harsch has been focusing on his legal practice and catching up on work that he put off to campaign. When he resigned from the ethics panel last summer, he was almost at the end of his four-year term. He cannot return to the post – ethics commissioners are supposed to serve only a single term.
He summed up the experience saying he won some battles and lost others. On his way out, however, Harsch took a “parting shot” at the one big change he had witnessed.
In his resignation letter, he wrote he had become “increasingly uncomfortable” with the fact that General Assembly members were immune from ethics probes, while, in contrast, some minor infractions by school board members and local commissioners were being prosecuted in civil court.
“There was only one element of serving on this commission that made me uncomfortable, indeed increasingly uncomfortable during my term of service,” he wrote. “The removal of the commission’s jurisdiction over the members of the General Assembly.”
Harsch, an attorney, blamed a Rhode Island Supreme Court decision for exempting the General Assembly members from ethics complaints.
The Supreme Court case – William Irons v. the Rhode Island Ethics Commission – sprang from a complaint brought against William Irons, who was then the Senate president. Operation Clean Government challenged two votes Irons had made in 1999 and again in 2000 against the Pharmacy Freedom of Choice Act. The bill would have given consumers the right to choose where to have prescriptions filled, instead of using the pharmacies selected by the insurance company.
At the time of the votes, Operation Clean Government argued, Irons was receiving commissions from Blue Cross Blue Shield and CVS. It said he had failed to disclose financial payments he received or fill out conflict-of-interest paperwork.
But, according to the Supreme Court decision, Irons had, in fact, written to the Ethics Commission in 1998 asking for advice about whether he could participate in the impending debate and vote. Irons told the panel he worked as an independent insurance broker and one of his clients had an interest in the outcome of the legislation.
The Ethics Commission advised him he could participate. But in 2004, when Operation Clean Government brought a complaint, the commission found probable cause that Irons had violated the code of ethics.
Irons resigned from the Senate, but argued he should be immune from the ethics probe because of the speech-in-debate clause. The case went to the Superior Court before Justice Francis Darigan, who found in Irons’ favor. The Supreme Court decision upheld Darigan.
The exemption for the legislators “became more and more of a problem,” Harsch said, and has created a situation that’s “illogical and uncomfortable.” As a result of the Supreme Court ruling, Rhode Island now has a strict code of ethics that applies to almost everyone “down to the local dog catcher,” says Harsch, but not over the people who need it most – members of the state legislature.
Harsch said the Rhode Island General Assembly enacts more bills than legislatures in most big states. He also said many of the measures are prompted by lobbyists, who offer the legislators trips to resorts and other perks.
The whole reason for the Ethics Commission, he said, was to deal with the issues in the General Assembly.
The court decision, according to Harsch, was “very bad” and was based on a “too broad” interpretation of the speech-in-debate clause in the state constitution. The clause, he explained, protects lawmakers from being prosecuted for doing their “core legislative” duties.
But, according to the Supreme Court’s decision in the Irons case, it also preserves the separation of powers by preventing the executive and judicial branches from bringing legal pressure and threat of arrest against the legislative outlet. The justices wrote the decision did not limit the right of the ethics panel to pursue lawmakers for questionable conduct outside their core legislative duties. However, to allow probes of votes, debates and other core legislative duties would essentially repeal the speech-in-debate clause, which is a “time-honored” protection in both the state and U.S. constitutions. According to the ruling, it benefits the public by allowing government to function. Moreover, it is not at all clear, the justices said, that the people of Rhode Island ever intended to repeal the speech-in-debate clause when they voted for the Ethics Commission.
Harsch said the question belongs back on the ballot to decide once and for all if the voters meant to include the General Assembly under the jurisdiction of the ethics board. But, he added, state lawmakers so far have fought “like cats and dogs” against putting the question to the vote.
“Maybe they will someday,” he said.
But for now, according to Harsch, the two chambers are playing a game. “They pass something in the House to put it on the ballot,” he said, but then the bill dies in the Senate. “It will not happen until the next huge scandal occurs.”
The good news, says Harsch, is that Rhode Island has a dedicated ethics board supported by a professional staff. The system is “waiting in the wings,” he said. The commission, in Harsch’s opinion, will work the way it was intended when members of the General Assembly are finally included.