With the recently elected majority of the Tiverton Town Council moving forward to replace the resigning Town Solicitor, the three incumbents are stirring up talk about conflicts of interest. To make the issue seem like an obvious scandal, they are leaving out all of the context that makes clear that it is obviously not a scandal.
The two angles that they are emphasizing are that two of my fellow council members, Robert Coulter and Nancy Driggs, and I have filed lawsuits against the town and that the proposed new solicitor, Giovanni Cicione of Cameron & Mittleman, has received payments for lobbying work from my employer in the past. The plain facts show that the Code of Ethics finds no conflict in these circumstances, and the context should lead reasonable residents of Tiverton to agree that there is no controversy either.
A review of the available meeting minutes from the Tiverton Board of Canvassers for 2017 and 2018 shows that – through two financial town referendums (FTRs), a statewide primary race, and a general election – Tiverton Town Solicitor Anthony DeSisto attended a single meeting. Although he was not on the agenda, on April 23, DeSisto showed up to instruct the Board of Canvassers that they should block some of the elector resolutions that had been submitted for inclusion on the ballot.
The Home Rule Charter allows any elector of the town to put “a resolution or ballot question” on the ballot for voters’ consideration as long as:
- It doesn’t “alter” any of the budgets that are on the ballot.
- It was submitted by the deadline.
- Fifty eligible voters (i.e., electors) signed a petition to put it on the ballot.
Those are the only requirements, yet Mr. DeSisto made his unusual appearance before the Board of Canvassers to tell them that five of the eight resolutions should not appear on the ballot. He gave a variety of different reasons that the board should do something that had never before been done. Two of them, he said, violated the state’s constitution. Two didn’t have to do with the budget. And the fifth, the solicitor argued, conflicted with a separate provision of the charter having to do with the Town Council’s authority.
At the very least, this grab bag of legal arguments was debatable. For the last one, DeSisto didn’t even accurately describe what the resolution would have done if it had passed. Nonetheless, the Board of Canvassers took the unprecedented step of deciding that they had the power to block resolutions simply because they might be legally challenged if the voters passed them. They made that decision even though they had every reason to know that lawsuits would be filed if they followed the solicitor’s advice.
As expected, the three of us did file lawsuits, along with two other people. We all represented our own cases before the court and none of us had any financial or personal interest in the outcome. The cases were purely public-interest, civil rights cases about voters’ access to the ballot.
One day before the financial town hearing (FTH) and with no time to spare for printing of ballots and other preparations for the May 19 FTR, we asked the judge to force the town to put the resolutions on the ballot. The standard of review for him to do so was very high, and in the end, he did not. Arguing against us, Solicitor DeSisto told the judge that we would not face “irreparable harm” if the resolutions were not on the ballot because we had another way to get to the same results: We could always run for office, win seats on the council, and hire a new solicitor.
In the end, the judge agreed not to step in at the last minute and change the ballot. That ruling left the cases in “unassigned” status, meaning that they would go nowhere until one side or the other decided to bring them to a resolution.
As things stand, it is unlikely that either side will move to bring the cases back to life, and in any event, hiring the town solicitor is not the same thing as hiring the lawyer who will oppose us in court. If the cases never come up, then they will never be heard. If they do come up, then we can recuse from all decisions as Town Council members. And if for some reason that isn’t good enough, the four remaining Town Council members can hire a separate attorney. Again, these are all additional steps beyond hiring the solicitor.
Another bit of context worth considering is that the town has a recent example of a very similar circumstance playing out with no problem. In 2016, Town Council members Joan Chabot and Randy Lebeau were among four elected officials who put forward an elector budget petition. However, they didn’t follow the correct steps to put it on the ballot, and the Board of Canvassers kept it off. The four petitioners sued the town, and Solicitor DeSisto handled the case with no problem.
The Business Association
Regarding the complaint that Mr. Cicione has lobbied for the RI Center for Freedom and Prosperity, the issue is just as clear.
Under the state Code of Ethics, the argument would have to be that, as a Town Council member, I am hiring an attorney with whom I have a “business association.” However, the state Ethics Commission has found that an employee of a company is not a business associate of a contractor or client of his or her employer. In fact, in 2014, the commission stated that the chief executive officer of Grow Smart did not have a business association with an outside organization even though Grow Smart itself did, and I am not the CEO of the Center.
Separately, the commission has held that doing business with somebody in the past is not a business association in the present. Only ongoing financial relationships are relevant.
A little additional context is important, here, too. It is not accurate to say, as some have, that Mr. Cicione has “lobbied for” the Center. The more accurate description of his engagement would be that he did legal research and testified on behalf of a specific civil rights issue on which the Center was working. His advocacy involved a public policy of mutual interest with the Center, not the direct interests of the Center itself.
All of the distinctions described above are important: the matter of personal or financial interest versus the public interest, the question of when a vote represents a conflict, the extent of a business relationship, and the nature of that relationship. People with a political motive can rub sticks together to create smoke, but insisting that it comes from a conflict-of-interest fire does not make it so.