Montalbano

PROVIDENCE — The state Ethics Commission yesterday rejected all of state Senate President Joseph Montalbano’s motions to dismiss ethics charges against him, including his claims that the state and federal constitutions protect him from prosecution based on his votes.

The decision, in part about a legal principle dating to the 17th century, would ordinarily have opened the way for commission prosecutors to schedule a trial-like hearing before the commission on the charges.

All parties in the battle, however, have been expecting a court fight, and Montalbano’s lawyer, Max Wistow, said that he’ll seek a court order blocking the senate president’s prosecution before the commission.

Barring that, Dianne L. Leyden, one of the commission prosecutors, said they would be ready to hold a hearing on the charges in six weeks. The commission prosecutors had originally planned to hold the hearing in early June.

There are eight charges against Montalbano, all related to his votes supporting a referendum on the failed proposal for a West Warwick casino, and to his legal work for the Town of West Warwick on land abutting the proposed casino site.

The ethics panel also rejected Wistow’s demand that Montalbano get a jury trial before the commission. Under state law, the commission members themselves decide cases following a hearing.

Wistow has raised constitutional issues novel to Rhode Island ethics cases, involving the extent of legislators’ protection from outsiders, including the commission. His challenges are based on provisions of the U.S. and Rhode Island constitutions intended to protect legislators from interference, which Wistow has argued means that legislators can’t be prosecuted or otherwise held legally accountable for their votes.

The arguments yesterday focused on the relationship between the “speech in debate” clause in the state Constitution, the provision Wistow is relying on, and the 1986 amendment to the state Constitution ordering the General Assembly to establish the commission and create a Code of Ethics.

Wistow argued that because the speech in debate clause predated the ethics provision, and the Constitutional Convention of 1986 didn’t change the speech in debate provision, that provision governs. He said that means Montalbano’s votes on the casino legislation can’t be used to support ethics charges against him.

Wistow, meanwhile, put an edge on his rhetoric at several points, belittling the commission prosecutors’ arguments and describing them as “preposterous,” “disingenuous,” “fuzzy” and, at one point, “gossamer.”

Commission lawyer Jason Gramitt rebutted Wistow’s points without disparagement. He pointed out that the 1986 amendment said the state Code of Ethics applies to “all elected and appointed officials and employees of state and local government,” with no exception for legislators.

Gramitt said that where the implications of the speech in debate provision may not be immediately obvious, what the Constitutional Convention proposed and the voters adopted in 1986 was perfectly clear: They intended to apply the ethics rules to “all elected and appointed officials.”

Gramitt also said that the 1986 amendment specifically cited “use of position” as something subject to the ethics rules. He asked, rhetorically, what is a more central “use of position” of a legislator than voting on bills?

What’s more, Gramitt said, the General Assembly then followed the directive of the new constitutional amendment and created the Ethics Commission and state Code of Ethics. Obviously, he said, the legislators knew that they were subject to the Ethics Commission and rules they were creating.

Gramitt said the voters were reacting in 1986 to a period of corruption that gave Rhode Island a national reputation for “quahogs and cronyism.” Without enforcement of the ethics rules, he said, “The alternative is widespread corruption and cronyism in all levels of state government.”

In the end, the commission took eight votes rejecting various motions, all but two of them unanimously against Montalbano. The exceptions were a 6-to-2 vote denying his motion to dismiss four charges based on the speech in debate clause, and a 7-to-1 vote denying him a delay before proceeding to a hearing on the charges, which Wistow will try to obtain in court.

The speech in debate provisions in the state and federal constitutions are part of a legal theme dating to the struggles of the English parliament with Tudor and Stuart monarchs who tried to use the civil and criminal law to intimidate or otherwise interfere with unfriendly legislators.

The current federal provision says that “for any speech or debate in either House,” senators and representatives “shall not be questioned in any other place.” The state Constitution has almost identical wording: “For any speech in debate in either house, no member shall be questioned in any other place.”

The U.S. Supreme Court has interpreted the provision broadly, to include not just debate, but also normal legislative activities so long as they are “generally done in a session . . . by one of its members in relation to the business before it,” as it said in a 1972 decision.

Four charges against Montalbano are based on his votes in a Senate committee handling the casino legislation and then on the Senate floor. They accuse him of having a substantial conflict of interest when he voted and of not filing statements disclosing the potential conflict of interest between his work for the town and his votes on the casino legislation. The other four charges are based on his failure to disclose his work for the town in mandatory financial statements filed with the commission.

Montalbano did not attend yesterday’s hearing.

blandis@projo.com