MONTALBANO

PROVIDENCE — State Senate President Joseph Montalbano has taken his claim that he can’t be prosecuted for his votes in the General Assembly to court.

His complaint, to be the subject of a hearing Tuesday, argues that legislators’ Constitutional protection prevents the state Ethics Commission from prosecuting him for his votes to put a casino plan on the ballot while he was also doing real estate work related to the proposal.

Although Montalbano is contesting all of the several ethics charges against him, his lawyer, Max Wistow, limited the appeal to the four charges related to Montalbano’s votes.

Using the novel argument he has injected into Rhode Island ethics law, Wistow argued that a Constitutional provision referred to as the “speech in debate” clause shields legislators from any prosecution based on their legislative activities, notably their votes. That immunity, he says, applies now, not after a hearing and decision by the commission.

Montalbano is accused of engaging in a “substantial” conflict of interest by voting to put the casino proposal before the voters while he was profiting from legal work for the town of West Warwick involving real estate abutting the proposed casino site. Wistow argues that any prosecution based on Montalbano’s votes would violate his Constitutional immunity.

At a hearing Aug. 21, on the other hand, the commission’s lawyers argued that when the voters approved the Constitutional amendment creating the Ethics Commission and Code of Ethics in 1986, they clearly meant to include legislators among the officials subject to the new ethics rules. The amendment said the code applies to “all elected and appointed officials,” making no exception for legislators.

Jason Gramitt, one of the commission lawyers prosecuting Montalbano, argued that the voters had thus made an exception to legislative immunity, allowing the Ethics Commission to prosecute legislators along with other officials. After that hearing, the commission rejected all of Wistow’s motions to dismiss all of the charges against Montalbano.

Ordinarily, the next step for the commission would be a trial-like hearing before the commission members and a vote on Montalbano’s guilt or innocence. Wistow’s court filing asks the Superior Court to block that hearing until the speech-in-debate issue is decided.

After reading Wistow’s complaint, Gramitt said yesterday that “We feel very comfortable with our position. We expect that we’re on the right side of this argument.”

He said, however, that if Montalbano wins on his immunity claim, it would be impossible to prosecute Montalbano on the charges based on his votes, something that would presumably apply to all other legislators, too. Two of the charges are based directly on Montalbano’s votes for the casino resolution in committee and on the Senate floor. Two others are based on his failure to file a statement disclosing that his official action might bring him a financial benefit.

However, Gramitt said, the commission could still prosecute Montalbano on three other charges based on his failure to include his work for West Warwick on mandatory financial disclosure forms that are intended to disclose conflicts of interest. Wistow has said that those omissions were an accident.

Montalbano voted in the spring of 2006 to place a proposal before the voters that November to change the state Constitution to give exclusive casino rights to the Harrah’s-Narragansett casino proposed for West Warwick, which the town supported. The voters defeated the amendment.

In deciding to prosecute Montalbano, the commission said his voting on the casino proposal while he was working for West Warwick on property “that would only be of interest to the town if the proposed casino were allowed” amounted to a substantial conflict of interest.

blandis@projo.com