The governor and the House leadership continue to squabble about how the separation-of-powers amendment affects appointees to the Lottery Commission.

02:34 PM EST on Tuesday, February 1, 2005

BY SCOTT MAYEROWITZ
Journal State House Bureau

CRANSTON -- The tug of war between Governor Carcieri and House leaders over the $1.5-billion-a-year Lottery Commission took several bizarre turns yesterday.

Moments before the commission was to start its first meeting since the separation-of-powers constitutional amendment took effect, Carcieri's chief of staff, Kenneth V. McKay IV, urged one of the governor's appointees to abandon the meeting, leaving the body without a quorum.

But that was only the beginning.

McKay went on to accuse the Senate committee in charge of vetting the governor's new appointees of "harassing" nominees with a new probing 44-question survey, which, among other things, asks for three years of tax returns.

To top things off, the Lottery Commission presented its own legal opinion about separation of powers from the criminal lawyer defending Lincoln Park -- the lottery's top cash cow -- in a federal corruption case.

All of yesterday's fighting centered around the amendment -- overwhelmingly approved by voters in November -- that bars lawmakers from boards and commissions that exercise executive authority.

Carcieri and government watchdog groups have maintained that legislators can no longer serve on any boards. Senate President Joseph A. Montalbano, D-North Providence, has agreed.

But House Speaker William J. Murphy, D-West Warwick, has held that the Lottery Commission, Coastal Resources Management Council and a handful of other bodies may be outside the purview of the amendment. Murphy has said that the state Constitution gives the General Assembly powers to regulate lotteries and to provide for the environment.

The Lottery Commission had nine members prior to separation of powers: three senators, three representatives and three gubernatorial appointees. The three senators have resigned but the House members are holding on to their seats for now. All three showed up at yesterday's meeting, saying they plan to serve until their successors are appointed.

In the last four days, McKay and other administration officials called commission members -- including Carcieri's three appointees -- and requested them not to attend what they considered to be an illegal meeting.

Minutes before the start of yesterday's meeting, McKay reached Carcieri appointee Brian C. Newberry, who had just arrived at Lottery headquarters. Newberry abruptly walked out of the building. Carcieri appointee Robert A. Mancini stayed at the meeting. The governor's other appointee, Mark F. Harriman, never walked through the door; neither did any of the senators.

Five commission members are necessary for a quorum. With just Mancini and the three House members present, there was no quorum under anybody's interpretation.

Rep. Robert E. Flaherty, D-Warwick, who -- depending on whom you ask -- is or was the chairman of the Lottery Commission, quickly said that without a quorum there was no meeting. The body will try again Feb. 14.

Before leaving, Flaherty took a shot at Carcieri for interfering with the commission.

"It's irresponsible to allow an agency of this size to run without appropriate management," Flaherty said.

The Lottery Commission had more than $1.48 billion pass through its hands last fiscal year. The state kept $280.9 million of that, its third-largest and fastest growing source of revenue.

Rep. William San Bento Jr., D-Pawtucket, said McKay's phone call was "reprehensible" and he vowed to attend meetings until a successor is in place. When that occurs, he said he will cease attending.

Operation Clean Government Chairman Robert Arruda said the House members showed "a blatant disregard" for the amendment.

"No member of the General Assembly should be sitting on that board at all," Arruda said. "We look at this as nothing less than a slap in the face to the citizens of Rhode Island."

McKay, who arrived for the start of the meeting, said the legislators' comments were "outrageous" and he blamed House leaders for dragging their feet in passing a law to specify how separation of powers will be implemented. The Senate passed such a bill last year, only to have it die in the House.

"The only game being played here is how do we hold on to some perceived notion of power," McKay said.

Murphy, through his spokesman Larry Berman, said: "While we continue to work on legislation towards the implementation of separation of powers, it is imperative that the wheels of government keep on moving."

He vowed "within the next month" to have legislation in place to "deal with the Lottery in the spirit of separation of powers."

WITH NO LEGISLATION, Carcieri last month appointed six new members to the Lottery Commission and eight people to the Coastal Resources Management Council, filling seats held by legislators or legislative appointees.

Those nominations have gone on to the Senate Judiciary Committee for confirmation.

Committee Chairman Michael J. McCaffrey, D-Warwick, has sent each nominee a survey asking for everything from a list of all their residences and jobs since age 18 to copies of their last three federal and state income tax returns. The forms are due in just a little more than a week.

The new questionnaire is not going out to all gubernatorial appointments, McCaffrey said yesterday, but to people seeking posts on "significant boards and commissions." It will also go to new department directors and the governor's nominee for child advocate.

McCaffrey said, given separation of powers, the Senate needs to do its due diligence. He said without legislators on the boards, the House and Senate now have less oversight.

McKay retorted: "So what was he doing before? What was he doing last year, failing?"

H. Philip West, executive director of Common Cause of Rhode Island, said that "it's not necessary or wise to ask quite so much" and that "people may well shy away" from wanting to serve if placed under such scrutiny.

McKay was even more blunt.

"It's harassment," he said. "Why would I expect somebody who is volunteering for public service to be subject to a document that is more stringent than legislators subject themselves to. . . They're doing whatever they can to make it as difficult as possible for people to volunteer. They don't want anybody to touch their pie."

THE COMMISSION also released yesterday a legal opinion -- dated Jan. 18 -- from John A. Tarantino saying that separation of powers does not apply to the body. Tarantino is currently defending Lincoln Park in a federal corruption case.

Tarantino, of Adler Pollock & Sheehan, said the state Constitution grants the General Assembly "absolute power with respect to all matters pertaining to gambling. . ." He said separation of powers does not "appear explicitly or implicitly to undermine this precedent."

McKay called the opinion "garbage" and wondered how the commission could hire a lawyer who also represents "the most heavily regulated entity before" it.

"This is one of the worst and most egregious breaches of public trust and confidence that I've seen," McKay said.

Lottery officials could not say yesterday afternoon how much the opinion cost. Flaherty said he agrees with the legal opinion.

Read the complete questionnaire from the Senate Judiciary Committee for the governor's nominees to prominent positions, at:

http://projo.com/news/pdf/2005/questionnaire.pdf