The governor brings the separation-of-powers issue to a head by nominating 14 people to seats held or appointed by legislators.

01:00 AM EST on Thursday, January 6, 2005

BY LIZ ANDERSON
Journal State House Bureau

PROVIDENCE -- Governor Carcieri yesterday asserted the recently passed separation-of-powers constitutional amendment gives him the right to immediately replace all legislators and legislative appointees on the Lottery Commission and Coastal Resources Management Council.

Carcieri sent the names of six Lottery nominees and eight coastal council nominees to the Senate for approval. Carcieri asked that they be confirmed quickly, noting each board was scheduled to meet before month's end.

Senate President Joseph A. Montalbano, D-North Providence, referred the nominations to the Senate Judiciary Committee for consideration.

"No one in the Senate questions his ability to name those people," Montalbano said.

But Carcieri's move served to highlight the different interpretations among the state's top legislative leaders about how to implement the constitutional amendment approved overwhelmingly by voters in November.

House Speaker William J. Murphy, D-West Warwick, has maintained the two boards, and a handful of others, may be outside the purview of the amendment, which bars lawmakers from participating in boards or commissions that exercise executive power. Murphy notes the state Constitution gives the General Assembly powers to regulate lotteries and to provide for the environment.

Murphy said again yesterday that with respect to the Lottery and the Coastal Resources Management Council: "We're looking to the Supreme Court for guidance" in an advisory opinion.

"Sometimes you have to stand alone," he said of the House's stance.

Last session, the Senate passed legislation to reconstitute the membership of scores of boards and commissions, including the Lottery and the coastal council. But the legislation died in the House, and the state's statutes continue to lay out board memberships that include legislators and their designees.

House members have not specifically resigned from either the Lottery Commission or the coastal council; the Lottery Commission's chairman, Rep. Robert E. Flaherty, D-Warwick, has said the three House members expect to continue to serve.

The nine-member commission, under existing law, also has three members of the Senate and three gubernatorial appointees. The coastal council has 16 members, including two House members, two Senate members, four public members appointed by the House speaker, seven gubernatorial appointees and the DEM director.

Asked whether the Assembly needed to pass legislation to alter the boards' composition before Carcieri could choose any replacements, Montalbano responded: "I don't believe so, because he's interpreting the Constitution in the way that's consistent with legislators getting off those boards and commissions," which he noted the Senate has agreed to do.

He called Carcieri's approach "a workable situation."

Carcieri maintained all former legislative appointments now fall to him. "I feel as though I'm duty bound to move forward," the governor said, calling his mandate "crystal clear."

"Everybody wants to see these boards continue to operate," he added. "What we don't want to see is a hiatus of two or three months . . . because we've got ambiguity as to who gets to sit."

Common Cause of Rhode Island Executive Director H. Philip West Jr. said he believes Carcieri can begin making appointments to state boards under a "literal reading" of the amendment.

"I think he's got a very good legal leg to stand on," West said. "He's seized the initiative in doing this and that's good, as far as we're concerned."

But he also noted a Supreme Court ruling in 1996 ruled the Constitution is not "self-executing," meaning legislation is generally needed to implement its intent. Ultimately, he said, it will probably be up to the Supreme Court to determine how the amendment is applied.

Sen. J. Michael Lenihan, D-East Greenwich, author of last year's boards and commissions bill, does not agree Carcieri has the power to make appointments now.

"I don't know how you appoint people to slots that haven't been established by statute," he said. "I think that's getting ahead of the game a little bit."

Lenihan also noted his bills had not ceded all appointments to the governor. For example, the Senate's proposal last year for the Lottery Commission was to give six appointments to the governor, and the other three to the general treasurer.

Carcieri yesterday told reporters he did not believe he was giving Montalbano a short timetable by asking the Senate to confirm his appointments within weeks.

"This isn't brain surgery, OK?" he said.

Said Montalbano: "I think that we would certainly schedule the hearings in the normal course of events over here and that would probably occur quicker than any Supreme Court advisory opinion." But he warned that the governor's appointees do not have the right to join a board until they are confirmed.

Carcieri also said he had met with Murphy in his office last night, and that they had discussed the issue.

"What he's going to do, I don't know," Carcieri said of the speaker.

The governor played down suggestions he could be setting up a scenario where House members and the governor's replacements both arrive to conduct a Lottery meeting, saying he was optimistic the situation "will be sorted out, hopefully, quickly."

Also yesterday, Rep. Rene R. Menard, D-Lincoln, introduced and sought a commitment for a House vote a week from today on a duplicate of one of last year's Lenihan appointments bills.

Menard's request ignited the first floor fight of the session between Murphy and the dissidents -- including Menard -- who had backed Rep. John J. DeSimone's losing bid for House speaker a day earlier.

Murphy's decision to send the bill to a House committee for review prompted a parliamentary squabble over whether Menard's motion had been properly seconded.

Said Menard ally Rep. Todd Brien, D-Woonsocket: "Mr. Speaker, I believe I seconded that motion very clearly." To which Murphy replied: "I did not recognize the second."

"Two members of this chamber clearly rose and seconded this motion," said Rep. David A. Caprio, D-Narragansett. "Under what discretion do you have to not recognize two clear seconds to a motion?" Murphy repeated: "I did not recognize the second . . . "

And so it went until the House voted 41 to 27 -- largely along the same lines as the leadership vote a day earlier -- to shuffle the bill off to committee.

With reports from Katherine Gregg.

And the governor's nominees are...

Governor Carcieri yesterday sent the Senate the names of six nominees to the state Lottery Commission. They are:

Julie G. Duffy, Barrington. Associate general counsel, Textron Inc., Providence. Chairwoman of Visiting Nurses Association of Rhode Island and related foundation. Holds law degree from Boston University. Daughter-in-law of Carcieri confidante David Duffy, chairman of the Rhode Island Convention Center Authority.

Patricia W. Farley, Providence. President and CEO of The Farley Group, a consulting firm which helps major companies relocate employees; formerly worked at several area real-estate companies. Member of the boards of the Greater Providence Chamber of Commerce and its related foundation.

Sherry E. Ferdinandi, Cranston. Certified public accountant, MullenScorpioCerilli CPAs Inc., Providence. Former employers include Textron Financial Corp., Cranston Medical Inc., and GTECH.

Barry G. Hittner, Warwick. Former director, state Department of Business Regulation, 1995-1999. A lawyer with Cameron & Mittleman; formerly practiced at Edwards & Angell. Director of Amica Mutual Insurance Co., and of Washington Trust Co.; director of Bannister Foundation; also trustee of Community Preparatory School and Trinity Repertory Co.

Peri Ann Aptaker, Providence. Lawyer and certified public accountant; principal in Kahn, Litwin, Renza & Co. Ltd. Law degree from Suffolk University Law School, Boston.

Richard L. Pastore, North Kingstown. Registered professional engineer, RP Engineering Inc., a consulting company. Clients include towns of Jamestown and Barrington. Former environmental engineer, U.S. Environmental Protection Agency. Chairman of North Kingstown Planning Commission; president of Concerned Communities Coalition Inc., a community group that opposed a container port at Quonset. Served on Carcieri's transition team.

Carcieri also nominated eight people to serve on the Coastal Resources Management Council. They are:

Paul Hansen, South Kingstown. Chairman and CEO of Millennium Consulting of South Kingstown and Providence; chairman and CEO of Compoint/entrepid, of South Kingstown and Providence; and chairman and CEO of scientific staffing company LifeScience Associates of South Kingstown. Member of the Rhode Island Saltwater Sportsmans Association, the Marine Recreational Fishing Alliance, the Coastal Conservation Association and the International Gamefish Association.

Anna F. Prager, South Kingstown. Former president of South Kingstown Town Council, former chairwoman of the Rhode Island Public Transit Authority, past vice president of the board of Save the Bay, past chairwoman of Governor's Council on Environmental Affairs. Former Republican Senate candidate, former South Kingstown town planner, former policy analyst at the Governor's Office for Environment, Energy and Water (1989-1991).

Cynthia Fuller, Barrington. Senior scientist responsible for health-risk assessment at ESS Group Inc. Holds master's degree in public health from University of Illinois.

Carol Hueston, North Kingstown. Former North Kingstown School Committee member, unsuccessful Republican candidate for state representative in November 2004, chairwoman-elect of the West Bay Family YMCA, former English teacher in the Warwick schools.

William Meyer, Charlestown. Owner, Meyer Associates, a sales representative organization; former general manager, New England Die Casting; current member, Republican town committee; retired Navy captain. Served on the Town Council in Newtown, Conn., and other municipal boards. Longtime summer resident; full-time Rhode Island resident since January 2004.

Janice Williams Oliver, Warren. Director of business development, Clear Channel Providence. Formerly worked in brand marketing, product development and project management at Best Foods, Bayer, Blue Cross & Blue Shield of Massachusetts, Hasbro and Royal Caribbean. Serves on the state's Worksite Wellness Committee, headed by Carcieri's wife, Sue. Holds MBA from Northwestern University.

Leslie M. Gray III, Bristol. Managing director, Morgan Group LLC, consulting firm to technology-driven companies. Former instructor at MIT. Founded Airflow Research and Manufacturing Corp. in 1981; company made radiator cooling fans for automotive industry. Master's degree in ocean engineering from Catholic University.

Cristina T. Harsch, Jamestown. Owner, Beyond the Fringe, an interior design and consulting business specializing in historic and period architecture and decor. Board member, State House Restoration Committee, Women's Resource Center of South County, and South County Garden Club (also serves as club conservation chairwoman). Fundraising chairwoman for Save the Bay for South County area. Wife of J. William W. Harsch, the 2002 Republican candidate for attorney general.