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Testimony!in!support!of!H!5374!
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April!7,!2015!
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Delivered!by!John!Marion,!executive!director,!Common!Cause!Rhode!Island!

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If!men!were!angels,!no!government!would!be!necessary.!If!angels!were!to!govern!
men,!neither!external!nor!internal!controls!on!government!would!be!necessary.!!
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LJames!Madison,!The!Federalist!
Common Cause Rhode Island supports H 5374, a resolution that would put before the
voters in November 2016 a constitutional amendment to fully restore the jurisdiction of
the Rhode Island Ethics Commission over the General Assembly. We urge you as
members of the House of Representatives to make this resolution a first step toward
restoring the tarnished reputation of this legislature.
In June 2009 the Rhode Island Supreme Court ruled in favor of former Senate President
William Irons in his suit against the Rhode Island Ethics Commission, upholding the
dismissal of the Commissions complaint by the Superior Court. In issuing this opinion,
the majority of the Court ruled that the Ethics Amendment, in Article III, Section 8,
passed by the voters in 1986 did not amount to a repeal of the legislative immunity
provided by the Speech in Debate Clause in Article VI, Section 5 of the Rhode Island
Constitution.
What this means is that the Speech in Debate Clause, which provides immunity for
members of the General Assembly from prosecution, or civil suits, based on their core
legislative acts applies to investigations and prosecutions by the Ethics Commission for
alleged violations of the Ethics Code. Core legislative acts include proposing, passing,
or voting upon a particular piece of legislation. Therefore, while the Code of Ethics and
the Ethics Commissions jurisdiction apply to state legislators generally, they cannot be
applied to the core legislative acts of state legislators.
Prior to the Irons decision, in 2003, the Ethics Commission exercised this power to fine
former Speaker Gordon Fox ten thousand dollars for a conflict of interest resulting from
his law practice. At this time there is no mechanism in place, either at the Ethics
Commission or in the House of Representatives, to punish a member who uses their
office to enrich him or herself. The Commissions 2003 decision in the Fox case
demonstrates its value in policing the sort of conflicts of interest that dont rise to the
level of criminal behavior. Right now there is no one policing that beat and the results
arent encouraging.

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Earlier this session you voted on the rules of the House of Representatives. According to
those rules you, as members of the House, must recuse from participation in a matter if it
violates the Code of Ethics. This is what Gordon Fox should have done in 2003. In the
absence of the Ethics Commissions jurisdiction weve seen a precipitous drop off in
recusals by members of both the House and Senate. When you compare the four-year
period before and after the Irons decision the average number of times a member recused
because of a potential conflict dropped 60% in the House and 40% in the Senate.
In its opinion, the majority of the Court said that, Unquestionably, this [speech in
debate] right could be modified (or even obviated) by a sufficiently explicit constitutional
amendmentbut we perceive no such explicitness in the language of the 1986 Ethics
Amendment. We support this resolution and its language to modify both the Ethics
Amendment and the Speech in Debate Clause to affect an explicit limited partial repeal of
the Speech in Debate Clause. The purpose of these changes are to give the Ethics
Commission, and only the Ethics Commission, the authority to apply the Code of Ethics
to core legislative acts and to permit the Commission to investigate and prosecute state
legislators for Code violations occurring during the conduct of such core legislative acts. !
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The language in this resolution would modify the Ethics Amendment, Article III, Section
8, and the Speech in Debate Clause in Article VI, Section 5. In the Ethics Amendment,
language is added to make explicit that the Ethics Commission has jurisdiction to hear
and decide all potential violations of the Code of Ethics notwithstanding the protections
of the Speech in Debate Clause. The Speech in Debate Clause is amended to permit the
Ethics Commission, and only the Ethics Commission, to question a state legislators
core legislative acts under the authority of Article III, Section 8.
The intent of our language is a limited repeal of the Speech in Debate Clause. We do not
wish to strip members of the General Assembly of their protections from criminal
prosecution or civil action for their core legislative acts. Nor do we intend to provide
more power to the Ethics Commission than they have historically exercised from the
period of 1986 to 2008. What we want is to see the Ethics Commission returned to its
rightful place as the watchdog for financial conflict of interest in Rhode Island
government.
The loophole created by the Irons decision has persisted for five years nowa period
during which the General Assembly has shown itself to be incapable of policing potential
conflicts by its members. We seek to put this language on the ballot in 2016 for the voters
of the State of Rhode Island to finally decide the issue. !

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