Senate President Joseph Montalbano, right, consults with his chief of staff, R. David Cruise, in the Senate chamber yesterday.

The Providence Journal / Connie Grosch Connie Grosch

PROVIDENCE — The Ethics Commission yesterday indefinitely put off its prosecution of Senate President Joseph Montalbano, which had been scheduled for a hearing Tuesday, after its members said they wanted more information on constitutional arguments raised by his lawyer, Max Wistow.

At least a temporary victory for Wistow, the development dismayed the government reform groups Common Cause and Operation Clean Government, which fear that the commission’s ability to enforce the state Code of Ethics, at least as it applies to the General Assembly, could be fatally undermined.

“What’s happening here is dangerous,” said Robert Arruda, who was Operation Clean Government’s president when he filed one of the complaints against Montalbano, in June 2006. The Ethics Commission “could be rendered ineffective,” he said, and accused Montalbano of “an attempt to gut the functions of this commission.”

“We’re very frightened” about the legal challenge from Montalbano, said Christine Lopes, executive director of Common Cause of Rhode Island, which has also long supported vigorous ethics enforcement.

Wistow, on the other hand, has said repeatedly that he is only trying to exercise the Senate president’s rights in the face of charges that could lead to heavy fines and loss of office, and could turn into a criminal case against him.

The commission had scheduled a trial-like hearing for Tuesday and Wednesday, when its prosecutors and Wistow would have presented their cases and the commission voted on a verdict.

Wistow had asked the commission to either dismiss the charges or delay the hearing. Commission prosecutor Dianne L. Leyden objected, saying that the commission didn’t have the authority to decide constitutional questions and should go ahead with the case.

But several of the commission members said yesterday that they wanted information, including briefs from the commission’s own prosecutors, on the issues Wistow raised. They didn’t act on his motion to dismiss the charges.

Among the claims Wistow has raised that most concern the reform groups is that the immunity legislators enjoy under the state and federal constitutions bars the commission from even trying Montalbano on four of eight charges against him because they depend on his votes in the Senate. Both Montalbano and former Senate President William Irons, who is being prosecuted in a separate case, have raised another novel issue by demanding jury trials in court instead of hearings before the commission.

Montalbano’s law firm, Montalbano & Montalbano, was paid $86,000 by the Town of West Warwick from 2003 through mid-2006 for legal services including land title work involving property adjacent to the then-proposed Harrah’s-Narragansett Indian casino.

The charges are:

•Two charges that say Montalbano’s May and June 2006 votes in committee and the full Senate for the resolution to put the casino plan on the ballot involved conflicts of interest because at the same time, Montalbano was doing legal work for the town involving land linked to the casino plan.

•Four charges that he failed to report the income from West Warwick on his mandatory financial-disclosure forms for 2002, 2003, 2004 and 2005.

•Two more charges that he failed to file written statements describing the potential conflicts of interest involved in his two votes on the casino resolution.

Wistow has said Montalbano’s failure to disclose the income was inadvertent, and he has raised a number of defenses against the other charges, including the assertion that the mandatory filing of disclosures of potential conflict of interest amounts to self-incrimination.

The novel issue Wistow has raised is that the “speech and debate” clauses in the U.S. and Rhode Island constitutions prevent the Ethics Commission from using Montalbano’s vote in any way in prosecuting him. The provision is intended to protect the ability of senators and representatives to do their legislative work without interference.

That would apparently demolish at least two charges, which specifically cite his act of voting, and, Wistow says, two more, the written statements describing a potential conflict, because they also depend on Montalbano’s voting.

A commission prosecutor, Jason Gramitt, however, said that the commission, too, draws its authority from the state Constitution, which contains “an express grant of authority” to the commission. “We expect that will carry the day,” he said.

The state Constitution directs the General Assembly to establish the Ethics Commission and says that “all elected and appointed officials” of state and local government are subject to the state Code of Ethics.

Everybody involved in the case expects it to be decided, sooner or later, by the courts. That’s not unusual, since any appeal of a commission decision is to the courts. What’s novel about Wistow’s challenge is that it would, if successful, prevent the commission from even prosecuting legislators in many circumstances.

Similarly, making a jury trial an option for accused officials would short-circuit the commission’s enforcement mechanism.

Wistow raised a number of other defenses, including the claim that the Town of West Warwick itself is not “a municipal agency,” and that Montalbano therefore didn’t have to report his income from the town. Leyden dismissed that interpretation as “absurdly narrow” and said that in any event, the commission’s regulations define “municipal agency” broadly enough to include the municipality itself.

blandis@projo.com