STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC. SUPERIOR COURT

(FILED: July 24, 2020)

FRANCIS X. FLAHERTY, :

Plaintiff, :

:

v. : C.A. No. PC-2019-5088

:

THE RHODE ISLAND ETHICS :

COMMISSION AND ITS MEMBERS, ROSS :

E. CHEIT, MARISA A. QUINN, ARIANNE :

CORRENTE, M. THERESE ANTONE, R.S.M., :

J. DOUGLAS BENNET, DR. TIMOTHY :

MURPHY, AND DR. ROBERT A. SALK, IN :

THEIR OFFICIAL CAPACITIES, :

Defendants. :

DECISION

STERN, J. Before the Court is Plaintiff Francis X. Flaherty’s (Plaintiff or Respondent)

administrative appeal challenging a decision of the Rhode Island Ethics Commission (Ethics

Commission) finding that he committed a knowing and willful violation of Commission

Regulation 36-14-17008 (Regulation 36-14-17008) and imposing a civil penalty. Jurisdiction is

pursuant to G.L. 1956 § 42-35-15.

I

Facts and Travel

Since 2003, Plaintiff has served as an Associate Justice of the Rhode Island Supreme

Court. R. Ex. S (Stipulated Facts) ¶ 1. On or about September 22, 2016, Helen L. Hyde

(Complainant) filed a complaint with the Ethics Commission, alleging that from 2010 through

2015 Plaintiff failed to disclose his position as President of the St. Thomas More Society of

2

Rhode Island (Society) on his annual financial disclosure filings with the Ethics Commission.1

See R. Ex. A (Complaint). The Complaint was docketed by the Ethics Commission as

Complaint No. 2016-14. See id. On or about October 11, 2016, the Commission Prosecutor (the

Prosecutor or the Prosecution) submitted an Initial Determination Report, finding that the facts

alleged in the Complaint—when taken as true—were sufficient to constitute a knowing and

willful violation of the Rhode Island Code of Ethics (the Code of Ethics). See R. Ex. B.

A

Preliminary Investigation, Motions, and Hearing

Thereafter, both the Plaintiff and the Complainant were given notice of the Ethics

Commission’s determination that the Complaint alleged sufficient allegations to constitute a

violation of the Code of Ethics. See R. Ex. C. The Ethics Commission advised that it would be

conducting further investigation into the allegations. Id. After approximately four months of

investigation, the Prosecutor submitted an Investigative Report. See R. Ex. D. The Investigative

Report summarized the evidence as follows:

“Evidence adduced during the investigation establishes that the

Respondent served as President of the St. Thomas More Society of

Rhode Island, a Rhode Island non-profit corporation, during

calendar years 2010-2015. On his 2010-2015 Financial Disclosure

Statements filed with the Commission pursuant to R.I. Gen. Laws

§ 36-14-16, the Respondent failed to list his executive position

held in the St. Thomas More Society of Rhode Island, as required

1 The Complainant also appended numerous exhibits to the Complaint relating to a civil action

she filed against the Roman Catholic Bishop of Providence (RCB). See Complaint at Exs. 1-4;

18; 20-21. It appears that the Complainant filed suit against the RBC, alleging that a priest under

their supervision “took advantage of and sexually abused several children.” Complaint at Ex. 4,

at 2. The trial court granted summary judgment in favor of the RBC. Id. at 1. The Complainant

appealed, and our Supreme Court affirmed the grant of summary judgment. Id. at 22. The

Plaintiff—for a unanimous court—authored the decision affirming the grant of summary

judgment. Id. at 1. However, the Ethics Commission explicitly excluded these exhibits from

their determination. See R. Ex. B (Initial Determination Report) n.1.

3

by Commission Regulation 36-14-17008, Leadership Positions

with Not-For-Profit Organizations.” Id.

Through the Investigative Report, the Prosecutor suggested to the Ethics Commission that

probable cause existed that the Plaintiff failed to list his position with the Society on his

Financial Disclosure Statements, as required by the Code of Ethics.2 Id.

The Plaintiff, through counsel, filed a Motion to Dismiss for Lack of Probable Cause,

alleging that his omission of the Society from the Financial Disclosure Forms did not constitute a

knowing and willful violation of the Code of Ethics. See R. Ex. E. The Ethics Commission held

a hearing on April 25, 2017, and after considering the Complaint, Investigative Report, and the

Motion to Dismiss for Lack of Probable Cause, the Ethics Commission found that probable

cause existed to believe that Plaintiff violated the Code of Ethics. See R. Ex. G. Thereafter,

Plaintiff filed three Motions to Dismiss: the first motion to dismiss alleged that the Ethics

Commission exceeded its authority in enacting Regulation 36-14-17008, see R. Ex. H; the

second motion to dismiss alleged that the Ethics Commission proceedings denied Plaintiff due

process, see R. Ex. I; and the third motion to dismiss alleged that the Plaintiff did not commit a

knowing and willful violation of the Code of Ethics. See R. Ex. J. The Prosecution filed

objections and memoranda in opposition to each motion to dismiss. See R. Exs. K-M.

The Ethics Commission heard Plaintiff’s motions to dismiss on November 20, 2018. See

R. Ex. N. The Ethics Commission heard oral argument from both Plaintiff’s counsel and the

Prosecutor, and the Ethics Commission members were allowed to ask questions of counsel. See,

e.g., id. at 2:11-15. The Ethics Commission voted unanimously to deny Plaintiff’s first and

second motions to dismiss. See id. at 19:12-20:2; 42:8-24. As to the third motion to dismiss,

2 The Investigative Report did not specify whether probable cause existed to believe that

Plaintiff’s failure to list his position as President of the Society was knowing and willful.

4

Plaintiff’s counsel conceded that it was similar to the Motion to Dismiss for Lack of Probable

Cause—which the Ethics Commission denied on April 25, 2017—and was being advanced to

preserve the record. Id. at 43:2-6. Accordingly, argument and discussion on the third motion to

dismiss was limited, and the Ethics Commission voted 4-1 to deny the third motion to dismiss.

Id. at 45:18-46:14. The next day, the Ethics Commission entered orders denying each of the three

motions to dismiss. See R. Exs. O-Q.

B

Adjudicatory Hearing

On February 26, 2019, the Ethics Commission heard a full adjudicatory hearing on the

Complaint. See R. Ex. R at 5:1-5. Plaintiff and the Prosecution submitted a Stipulation agreeing

to certain facts and the admission of certain documents as full exhibits. See R. Ex. S. The

Stipulation was admitted as Joint Exhibit 1, see R. Ex. R. at 10:13-14, and the Prosecution

proceeded with its opening statement and presentation of its case-in-chief. See, e.g., id. at 10:15-

18:5.

1

Prosecution’s Case-in-Chief

For its case-in-chief, the Prosecution did not call any witnesses and instead relied on the

stipulated facts and documentary evidence to argue that the Plaintiff committed a knowing and

willful violation of the Code of Ethics by failing to disclose his position as President of the

Society on his Financial Disclosure Forms for the years 2010-2015. See id. at 16:11-19; 17:15-

17. Specifically, the Prosecution admitted evidence that the Society was incorporated in 1998 as

a Rhode Island nonprofit corporation pursuant to G.L. 1956 §§ 7-6-1, et seq. (the Rhode Island

Nonprofit Corporation Act). See R. Ex. T-1; see also R. Ex. S, ¶ 4. Pursuant to the Rhode Island

5

Nonprofit Corporation Act, the Society was required to file an annual report with the Rhode

Island Secretary of State, which it did for each of the relevant years (2010-2015). See R. Ex. R

at 13:21-14:2. On the Society’s annual reports filed with the Secretary of State for the years

2010-2015, the Plaintiff was listed as the President of the Society. See R. Ex. T-2; see also R.

Ex. S, ¶ 2. The Prosecution noted that the Society’s bylaws designate the President as the chief

executive officer of the Society and vests him or her with the authority to “supervise[] and

control[] all the corporation’s business and affairs,” including calling and presiding over

meetings, and serving as a member of the Society’s Board of Directors. See R. Ex. T-3, § 6.02.

The Prosecution then went on to explain Regulation 36-14-17008, which took effect on

April 15, 2008, and requires that Financial Disclosure Statements filed in accordance with G.L.

1956 § 36-14-16 “shall include, in addition to any other requirements, a list of all boards of

directors, trustees or equivalent fiduciary positions of which the person is a member and all

executive officer positions which the public official holds in any not-for-profit organization.” R.

Ex. R at 15:7-12. The Prosecution argued that while the Plaintiff submitted the appropriate

Financial Disclosure Statements for the years 2010-2015, those statements failed to list his

position as President of the Society. See R. Ex. T-4; see also R. Ex. S, ¶ 12.

Specifically, question number nine on the Yearly Financial Statements asked, in pertinent

part, to list the name and address of any business organization or other entity, whether for profit

or nonprofit, in which the respondent held a management position or was a director, officer,

partner, or trustee (Question Nine). See R. Ex. T-4.3 The Prosecution also presented the

3 The wording of Question Nine was the same for the 2010-2013 Yearly Financial Statements. It

asked the respondent to “[l]ist the name and address of any business organization or other entity,

whether for profit or non-profit, in which you, your spouse, or dependent child held a position as

a director, officer, partner, trustee, or a management position.” Id. However, in 2014 and 2015

the wording of Question Nine on the Yearly Financial Statements changed, and asked the

6

Instruction Sheets which accompanied each Yearly Financial Statement for the years 2010-2015.

For the years 2010-2013,4 the accompanying instruction for Question Nine was “[i]f you, your

spouse or dependent child held a position as director, officer, partner, trustee, or management

position, identify the position and state the business address. This applies to non-profit

organizations of any type as well as to profit-making organizations.” Id. The Instruction Sheets

accompanying the 2014 and 2015 Yearly Financial Statements expanded the instructions for

Question Nine, and detailed that the respondent must

“[l]ist all positions of management, as well as positions of director,

officer, partner, trustee or positions of a similar nature in any entity

(including non-profits), held by you, your spouse or dependent

child at any time in calendar year 2014[/2015]. This includes

businesses as well as non-profit organizations or groups. Examples

include: Vice-President of Acme, Inc.; Manager of Windows,

LLC; Director of Greenfield Bank; Board of Directors of Big

Brothers; Trustee of Apple Valley Land Trust; Secretary of

Citizens for Healthy Shellfish; Treasurer of Aquidneck Island

Little League.” Id.

Based on the documentary evidence presented, the Prosecution argued that the Society

was a nonprofit entity and the Plaintiff “failed to disclose his position as President of the Society

in response to question number nine.” R. Ex. R at 16:12-13. The Prosecution contended that the

Plaintiff certified on each of his Yearly Financial Statements for the years 2010-2015 that his

responses were complete and accurate, and he acknowledged that he was “permitted and

encouraged to seek assistance or guidance from the Ethics Commission as to any issues or

respondent to list whether “you, your spouse or dependent child held a management position or

were a director, officer, partner, or trustee of any business, organization or other entity (for profit

or non-profit).” Id. 4 For 2010, the accompanying instruction for Question Nine had minor grammatical differences

and read as follows: “[i]f you, your spouse or dependent child held a position as director, officer,

partner, trustee, or management position, identify the position and state the business address.

This applies to a non-profit organization of any type as well as profit-making organization.” Id.

7

questions [he] may have relative to th[e] financial statement and the information that must be

disclosed.” Id. at 17:24-18:4. Thereafter, the Prosecution rested. Id. at 18:5.

2

Rule 52 Motion

At the conclusion of the Prosecution’s case-in-chief, Plaintiff moved for judgment in his

favor pursuant to Super. R. Civ. P. 52 (Rule 52). See id. at 18:10-12. The Ethics Commission

entertained Plaintiff’s Rule 52 Motion and heard oral argument from both Plaintiff’s counsel and

the Prosecution. After hearing from both parties, the Ethics Commission voted unanimously to

go into executive session to deliberate on the Rule 52 Motion. See id. at 28:6-20. During

executive session, the Ethics Commission inquired of its legal counsel what the knowing and

willful standard is, as well as what standard the Ethics Commission should apply to the Rule 52

Motion. See R. Ex. V at 5.5 Upon returning from executive session, the Ethics Commission

voted unanimously to deny the Plaintiff’s Rule 52 Motion, finding instead “that the

[P]rosecution, through the admitted exhibits, ha[d] submitted legally sufficient evidence as to all

of the elements of the Complaint.” R. Ex. R at 29:4-6; see also id. at 29:9-17.

3

Plaintiff’s Case-in-Chief

Plaintiff proceeded to present his case-in-chief to the Ethics Commission. Plaintiff called

two witnesses—Family Court Magistrate Armando O. Monaco (Magistrate Monaco) and retired

5 In describing the knowing and willful standard, legal counsel to the Ethics Commission stated

that “[w]hen a violation of the statute is reasonable and made in good faith, in order to show a

knowing and willful violation it must be shown that Respondent either knew or showed reckless

disregard for the question of whether the conduct was prohibited by the statute. . . . In contrast,

when the alleged violation is not reasonable, it must be shown that the official was cognizant of

an appreciable possibility that he might be subject to the statutory requirements and he failed to

take steps reasonably calculated to resolve the doubt.” Notably, legal counsel to the Ethics

Commission did not discuss intent or deliberateness. See infra § III(A)(1).

8

Superior Court Associate Justice Francis J. Darigan, Jr. (Justice Darigan)—and also testified on

his own behalf.

a

Magistrate Monaco

Magistrate Monaco testified that he has served as the Treasurer of the Society for the past

seven or eight years and continuing to the present. See id. at 34:8-11. Magistrate Monaco

testified that the Society is “a very informal organization,” which does not have its own building

or pay rent, does not employ any persons, and does not have an annual budget or payroll. See id.

at 34:18-35:6; 40:1. Magistrate Monaco acknowledged that he knew the Society is a 501(c)(3)

organization that is required to file with the Internal Revenue Service (IRS), has “a slate of

officers” who are nominated and selected at an annual meeting, and that the board of directors

meets approximately two to five times a year to make arrangements for the Red Mass. 6 See id.

at 35:7-9, 23-24; 36:6-18; 38:23-39:4; 40:2. However, for the years 2013-2015 Magistrate

Monaco did not list the Society on his Yearly Financial Statements because when he “looked at

the question it never crossed [his] mind that [the Society] would be one that would be required to

be [listed] because it was such an informal organization.” Id. at 41:9-12; see R. Ex. U-1b.

The Prosecution did not question Magistrate Monaco, and the Ethics Commission was

given the opportunity to ask questions of him. See R. Ex. R at 42:5-8. The Ethics Commission

asked Magistrate Monaco several questions, including clarifying that he knew the Society was a

nonprofit and that nothing in the Yearly Financial Statement instructions indicates that only

organizations with regularly scheduled meetings should be listed. Id. at 45:1-3; 44:19-24. At the

6 The Red Mass is an annual mass sponsored by the Society to mark the opening of the judicial

term. See R. Ex. S (Stipulated Facts) ¶ 7.

9

conclusion of the Ethics Commission’s questioning, Magistrate Monaco was excused. Id. at

45:4-6.

b

Justice Darigan

Next, the Plaintiff called Justice Darigan to testify. See id. at 45:8. Justice Darigan

testified that he became a member of the Society in the late-1990’s, and sometime subsequent to

1999 he served as President of the Society for one or two years and was a member of the board

of directors up until 2005. See id. at 49:4-9; 50:4-9. Justice Darigan testified that he viewed the

Society as a “very, very loose organization” that had no official dues and met one or two times a

year. See id. at 50:10-11, 20-22. Accordingly, Justice Darigan did not list his position with the

Society on his 2005 Yearly Financial Statement because “[i]t never crossed [his] mind.” Id. at

52:14; see R. Ex. U-1a.

The Prosecution did not question Justice Darigan, and the Ethics Commission was given

the opportunity to ask questions of him. See R. Ex. R at 53:21-54:2. In response to

Commissioner Quinn’s questions, Justice Darigan admitted that, reading the Yearly Financial

Disclosure form in retrospect, he “certainly” would have listed the Society had he thought of it

and had it crossed his mind. Id. at 54:12-18. At the conclusion of the Ethics Commission’s

questioning, Justice Darigan was excused. Id. at 54:24-55:2.

c

Plaintiff

Finally, the Plaintiff testified in his own defense. Id. at 55:4-5. Plaintiff testified that he

has been filling out some form of financial disclosure statement for over thirty-five years and has

never filled them out incorrectly, filed them late, or failed to file them. See id. at 59:10-60:11.

10

Over the years, Plaintiff testified that he has developed a consistent process for filling out the

Yearly Financial Statement and that he “pay[s] a lot of attention to it.” See id. at 60:15-20.

Accordingly, Plaintiff testified that he blocks one or two hours out of a day to focus on the

Yearly Financial Statement. See id. at 60:20-21. During that time, Plaintiff testified that he

would go over a copy of the Yearly Financial Statement he filed for the previous year, make

handwritten edits on the previous year’s form to make changes, additions, and/or deletions, and

then have his secretary type up the form with his handwritten edits incorporated. See id. at

60:20-61:1. Plaintiff would then review the final version of the form and submit it, understanding

that he was certifying the accuracy of the form under oath. See id. at 61:1-4.

Plaintiff also testified about his involvement with the Society. Specifically, he testified

that he became involved with the Society sometime in late 2009 to early 2010, and believed he

became President in 2010. See id. at 61:9-19. During that time, Plaintiff recalled attending and

presiding over approximately two meetings a year, and the Society had approximately ten to

twelve members. See id. at 62:1-3, 10-12. Plaintiff further testified that during his tenure as

President, the Society did not have an office, building, or budget, and he was unaware the

Society had a set of bylaws and did not have a copy of those bylaws. See id. at 62:6-9, 13-15;

63:14-18. While Plaintiff served as President of the Society from 2010 to 2015, he testified that

he was not aware what type of entity the Society was, “[b]ut [he] did not ask nor did anyone

inform [him] that it was a corporation.” Id. at 63:1-7. Plaintiff testified that while serving as

President of the Society he never signed any forms for the Secretary of State; he thought it was

“a very loose . . . grouping of people. [He] had no idea it was a corporation.” Id. at 63:10-12.

11

Plaintiff went on to testify that he did not list the Society on his Yearly Financial

Statements for 2010-2015. Id. at 65:2-5. When asked why he did not list the Society, Plaintiff

answered as follows:

“I never — it never even entered my mind to enter. I mean, I

didn’t, I didn’t, you know, decide, well, okay, this really doesn’t

belong on here. It never even entered my mind. I never even

thought about it, and I just, you know, I listed all the involvement,

quite a few nonprofits, I think I listed everything else, but this was

just so de minimus that I just never thought about it.” Id. at 65:7-

14.

Plaintiff testified that he did not forget to list the Society, he did not deliberate about whether to

list the Society and decided not to list it, and he had nothing to gain by leaving the Society off

the Yearly Financial Statements. See id. at 65:15-22; 66:12-14.

The Prosecution was given the opportunity to cross-examine Plaintiff, and elicited

testimony regarding “a few [ethics] complaints back in the early 90’s that had been dismissed.”

Id. at 67:9-11. Plaintiff admitted that those complaints were lodged against him by political

opponents, “were dismissed out of hand,” and never required him to attend an ethics committee

meeting. See id. at 67:12-22. The Prosecution also elicited testimony that Plaintiff read each

question in full prior to completing his Yearly Financial Statements, see id. at 68:2-6, that he

recalled receiving accompanying instructions every year, see id. at 69:3-6, but that he could not

testify for certain whether he read those instructions in filling out his 2010-2015 Yearly Financial

Statements because he “generally would look at the instructions, but if [he] understood the

question, [he] didn’t need instructions.” Id. at 69:18-20; see also id. at 70:1-4; 71:20-72:1.

The Ethics Commission members were also given the opportunity to ask Plaintiff

questions. The Plaintiff reiterated to the Ethics Commission that while serving as the President

of the Society he was not aware it was a 501(c)(3) organization, and “was not aware that it was a

12

corporation until [he] was served” with the Complaint. Id. at 72:16-24. The Plaintiff also

confirmed that he never reviewed, signed, or was aware of the annual reports filed by the Society

with the Secretary of State. See id. at 73:2-17. Plaintiff told the Ethics Commission that the

Society would usually meet two or three times in the spring, and those meetings were “very

informal,” but may have included motions and votes. See id. at 74:14-75:11. At the conclusion

of the Ethics Commission’s questioning, Plaintiff was excused.

4

Closing Statements

Both parties next presented their closing arguments to the Ethics Commission. Id. at

77:21-22. The Prosecution argued that all the testimony regarding the Society’s activities, the

frequency of its meetings, and the informal nature of it was irrelevant as to whether the Plaintiff

failed to disclose it on his Yearly Financial Statements. See id. at 78:1-11. Instead, the

Prosecution argued that pursuant to the plain language of Regulation 36-14-17008, the Plaintiff

was required to disclose the Society because it is a nonprofit corporation and he held the position

of President for the years 2010-2015. See id. at 79:3-10. The Prosecution argued that the

Plaintiff did not attempt “to conceal his position with the Society by not disclosing it on his

forms,” but rather made an unreasonable error by reading and responding to Question Nine on

each of his Yearly Financial Statements for 2010-2015, and not listing the Society. Id. at 80:5-

18. The Prosecution also refuted the testimony of Plaintiff’s witnesses—who testified that they

did not disclose the Society on their Yearly Financial Statements either—by pointing the Ethics

Commission to the Yearly Financial Statements of five individuals, including two attorneys and

three judicial officers, which disclosed their position with the Society. See id. at 84:8-21.

Accordingly, the Prosecution submitted to the Ethics Commission that it had proved—by a

13

preponderance of the evidence—that Plaintiff committed a knowing and willful violation of

Regulation 36-14-17008. Id. at 85:3-6. The Plaintiff continued to press his argument that the

nondisclosure of the Society on his Yearly Financial Statements for the years 2010-2015 did not

constitute a knowing and willful violation of the Code of Ethics because his omission was

reasonable and in good faith.

5

Ethics Commission Deliberation and Decision

At the conclusion of the closing arguments, the Ethics Commission unanimously moved

to go into executive session to deliberate. Id. at 91:5-23. The Ethics Commission deliberated for

approximately twenty-five minutes, see id. at 91:24-92:1, and asked two questions of their

independent legal counsel, including whether the fact that other Society members did or did not

list their position in the Society on their Yearly Financial Statements could be considered when

determining whether the Plaintiff acted reasonably in not listing his position as President of the

Society.7 See R. Ex. V at 6. When the Ethics Commission resumed to open session, they

unanimously voted

“to find that the prosecution has established by a preponderance of

the evidence that Respondent Francis X. Flaherty, an Associate

Justice of the Rhode Island Supreme Court, committed a knowing

and willful violation of Rhode Island Ethics Code, Commission

Regulation 36-l4-l7008, by failing to list his position as President

of the St. Thomas More Society of Rhode Island as required by the

Commission’s Regulation 46-13-17008, now numbered 520-

RICR-00-00-4.11, on his 2010 through 2015 financial statements

required to be filled pursuant to Rhode Island General Laws 36-14-

16.” R. Ex. R at 92:6-17.

7 In response, counsel advised the Ethics Commission that the actions of other Society board

members in either listing, or not listing, their position with the Society on their yearly financial

disclosure statements could be considered in determining whether Plaintiff acted reasonably.

14

The Ethics Commission also voted unanimously to impose a two-hundred dollar civil fine. See

id. at 93:9-94:4.

The Ethics Commission’s ten-page written decision (the Commission Decision), which

was filed on April 15, 2019, detailed the travel of the case and laid out the Stipulated Facts and

agreed upon Exhibits. See R. Ex. V. The Commission Decision was supported by twenty

findings of fact, which led to its conclusion that “Commission Regulation 36-14-17008 (now

numbered 520-RlCR-00-00-4.11) in 2008, [] clearly required the Respondent to list his position

as President of the St. Thomas More Society on his financial statements for calendar years 2010-

2015.” Id. at 10. Accordingly, the Commission Decision found that “[t]he Respondent’s failure

to list his position as President of the St. Thomas More Society on his financial statements for the

period 2010-2015 constitutes a knowing and willful violation of Commission Regulation 36-14-

17008, (now numbered 520-RlCR-00-00-4.11)” and imposed “a civil penalty of Two Hundred

($200) Dollars.” Id.

C

Instant Litigation

The Plaintiff timely filed the instant administrative appeal alleging that 1) the Ethics

Commission’s decision denying the Plaintiff’s first Motion to Dismiss was clearly erroneous

because the Ethics Commission exceeded its statutory authority in adopting Regulation 36-14-

17008; 2) the Ethics Commission’s decision denying the Plaintiff’s second Motion to Dismiss

was clearly erroneous because the proceedings denied Plaintiff due process of law by allowing

the same Ethics Commission members to investigate probable cause and adjudicate the

underlying substantive charge, and Chairperson Cheit did not recuse himself; 3) the Ethics

Commission’s decision denying the Rule 52(c) Motion was clearly erroneous because the

15

Prosecution had only presented documentary evidence, which did not demonstrate that the

Plaintiff committed a knowing and willful violation; and 4) the Ethics Commission’s conclusion

that Plaintiff committed a knowing and willful violation of the Code of Ethics is contrary to the

law and clearly erroneous. After both parties fully briefed this appeal, this Court heard oral

argument upon the request of both parties.8 After considering oral and written arguments, the

Court now decides the instant administrative appeal.

8 The Plaintiff also filed three motions to expand the record on appeal, to each of which the

Ethics Commission objected to. The motions to expand sought to include in the record, inter

alia, social media postings by Chairperson Cheit and his wife, Chairperson Cheit’s financial

disclosure statement for calendar year 2018, and various documents and filings relating to the

Brown University Faculty Club. In addition, the Plaintiff’s third motion to expand the record

sought to include an August 13, 2019 memorandum from the Ethics Commission’s counsel

addressing potential amendments to the Code of Ethics. After reviewing the additional materials

and the motions to expand the record, the Court finds that the record shall not be expanded.

It is a tenet of administrative appeals that this Court “is limited to an examination of the

certified record to determine whether the agency’s decision is supported by any legally

competent evidence in the record.” Rhode Island Public Telecommunications Authority v. Rhode

Island State Labor Relations Board, 650 A.2d 479, 484-85 (R.I. 1994). It is also well settled that

“[c]ourts permit supplementation of the administrative record only rarely. Where the

administrative record provides inadequate support for an agency action, the usual remedy is to

vacate and remand that action for further agency proceedings.” 33 Charles Alan Wright, Charles

H. Koch & Richard Murphy, Federal Practice & Procedure § 8391 at 333 (2d ed. 2018). Here,

the certified agency record consists of twenty-two items, which were certified and attested to by

the Ethics Commission’s Office Manager. See Certification of Record (May 16, 2019). The

record spans from the filing of the Complaint to the Commission Decision and Order. There is

no evidence, or argument by Plaintiff, that the record is incomplete. Cf. Champlin’s Realty

Associates v. Tikoian, 989 A.2d 427, 449 (R.I. 2010) (ordering expansion of the agency record

where the record was incomplete because impermissible ex parte information was not made

available for examination by the parties).

Rather, Plaintiff seeks to include the expanded materials because he asserts that they are

relevant to the instant proceeding, including to show irregularities in the Ethics Commission’s

procedure, Chairperson Cheit’s bias—or appearance thereof—and his failure to recuse himself,

and the Ethics Commission’s purpose and intent in possible amendments to the Code of Ethics.

However, the Court finds that none of the proposed expanded exhibits makes it more or less

probable as to whether the Commission Decision finding that Plaintiff committed a knowing and

willful violation of the Code of Ethics prejudiced the substantial rights of the Plaintiff for any of

the reasons enumerated in § 42-35-15(g). This Court is not satisfied that “the additional

evidence is material and that there were good reasons for failure to present it in the proceeding

before the agency,” pursuant to § 42-35-15(e), nor that “alleged irregularities in procedure before

16

II

Standard of Review

This Court’s review of administrative agency decisions is governed by the Administrative

Procedures Act (APA), §§ 42-35-1 et seq. See Auto Body Association of Rhode Island v. State

Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010). Pursuant thereto, this Court

may reverse or modify the agency’s decision

“if substantial rights of the appellant have been prejudiced because

the administrative findings, inferences, conclusions, or decisions

are:

“(1) In violation of constitutional or statutory provisions;

“(2) In excess of the statutory authority of the agency;

“(3) Made upon unlawful procedure;

“(4) Affected by other error of law;

“(5) Clearly erroneous in view of the reliable, probative, and

substantial evidence on the whole record; or

“(6) Arbitrary or capricious or characterized by abuse of discretion

or clearly unwarranted exercise of discretion.” Section 42-35-

15(g).

However, the Court cannot “substitute its judgment for that of the agency concerning the

credibility of witnesses or the weight of the evidence concerning questions of fact.” Blais v.

Rhode Island Airport Corporation, 212 A.3d 604, 611 (R.I. 2019) (internal quotation omitted).

As such, if the agency’s factual determinations are supported by any legally competent

evidence, the Court must uphold the agency’s decision. See Endoscopy Associates, Inc. v. Rhode

Island Department of Health, 183 A.3d 528, 532 (R.I. 2018). Our Supreme Court has

“interpreted the phrase “legally competent evidence” as meaning ‘the presence of some or any

evidence supporting the agency’s findings.’” Auto Body Association, 996 A.2d at 95 (quoting

the agency” warrant taking additional proof. See § 42-35-15(f). Accordingly, Plaintiff’s motions

to expand the record on appeal are denied, and the Court will limit its consideration to the

certified record.

17

Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). Thus, an agency’s

factual determinations will only be reversed where they “are ‘totally devoid of competent

evidentiary support in the record.’” Bunch v. Board of Review, Rhode Island Department of

Employment & Training, 690 A.2d 335, 337 (R.I. 1997) (quoting Milardo v. Coastal Resources

Management Council, 434 A.2d 266, 272 (R.I. 1981)). Notwithstanding, the agency’s

determination as to questions of law “are not binding on the reviewing court; they ‘may be

reviewed to determine what the law is and its applicability to the facts.’” Pawtucket Transfer

Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting Narragansett

Wire Co. v. Norberg, 118 R.I. 596, 607, 376 A.2d 1, 6 (1977)).

III

Analysis

Plaintiff argues that the Ethics Commission’s finding that he committed a knowing and

willful violation of the Code of Ethics is contrary to the law, clearly erroneous, and against the

competent evidence in the record. Specifically, Plaintiff contends that the Ethics Commission

applied the wrong analysis and the wrong legal standard in determining whether the Plaintiff

committed a knowing and willful violation of Regulation 36-14-17008. Instead, Plaintiff argues

that the Ethics Commission impermissibly applied a strict liability standard9 in determining that

he committed a knowing and willful violation of the Code of Ethics and, moreover, that the

competent evidence in the record reflects that Plaintiff did not commit a knowing and willful

violation of the Code of Ethics.

The Prosecution objects, arguing that the Ethics Commission’s finding that Plaintiff

committed a knowing and willful violation of the Code of Ethics is supported by substantial

9 Strict liability is liability that does not depend upon proof of negligence or intent. See Black’s

Law Dictionary, 11th ed. 2019.

18

evidence in the record. Specifically, the Prosecution argues that the Ethics Commission found

that the Plaintiff’s conduct was unreasonable because the plain language of Question Nine

clearly and unambiguously required the Plaintiff to list his position as President of the Society,

and the Plaintiff did not take any steps reasonably calculated to resolve any doubt as to whether

he was required to list his position as President of the Society. Moreover, the Prosecution argued

that even if the Plaintiff’s conduct in not disclosing his position as President of the Society was

found to be reasonable and made in good faith, he still committed a knowing and willful

violation of the Code of Ethics because the record reflects that he showed a reckless disregard for

whether his position as President of the Society was required to be disclosed. Accordingly, the

Prosecution argues that under either the reasonable or unreasonable analysis, there is substantial

evidence in the record to support the Ethics Commission’s finding that the Plaintiff committed a

knowing and willful violation of the Code of Ethics, that the Ethics Commission did not apply a

strict liability standard, and that deliberateness is not a requirement of the knowing and willful

standard.

A

Knowing and Willful Standard

In enacting the Code of Ethics, the General Assembly mandated that “[t]here shall be a

presumption of innocence on the part of any person alleged to have violated the provisions of”

the Code of Ethics, and the Prosecution bears the burden of proof. Section 36-14-13(a)(4).

Accordingly, the Ethics Commission must find that “there has been a knowing and willful

violation” of the Code of Ethics by a preponderance of the evidence in order to sustain a

violation and impose penalty. Section 36-14-13(a)(8). The Code of Ethics is silent as to what

knowing and willful means, but our Supreme Court has, on occasion, given meaning to the term.

19

As our Supreme Court has generally defined the terms, “‘it may be said that to act either

‘knowingly’ or ‘wil[l]fully’ is to act voluntarily and intentionally, and not because of mistake or

accident or other innocent reason.’” Carmody v. Rhode Island Conflict of Interest Commission,

509 A.2d 453, 459 (R.I. 1986) (quoting State v. Contreras, 105 R.I. 523, 537, 253 A.2d 612, 620

(1969)). A knowing and willful violation does not need to be motived by a wrongful or evil

purpose, but rather requires only a “‘specific intent’ to perform the act itself, that is, that the act

or omission constituting a violation of law must have been deliberate, as contrasted with an act

that is the result of mistake, inadvertence, or accident.” See id. (citing Contreras, 105 R.I. at

523, 253 A.2d at 612, and finding that this definition “meets with nearly universal approval”).

Specific to the Code of Ethics, our Supreme Court has adopted a two-prong approach in

order to determine what constitutes a knowing and willful violation. See DiPrete v. Morsilli, 635

A.2d 1155, 1163 (R.I. 1994) (citing Carmody, 509 A.2d at 460-61. This analysis focuses the

inquiry upon the reasonableness of the violation. Accordingly, if the violation “is reasonable and

made in good faith, it must be shown that the official ‘either knew or showed reckless disregard

for the question of whether the conduct was prohibited by [the] statute.’” Id. at 1163-64 (quoting

Carmody, 509 A.2d at 460). Conversely, if the violation is unreasonable, “it must be shown that

the official was ‘cognizant of an appreciable possibility that he [or she] [might] be subject to the

statutory requirements and [he] [or she] failed to take steps reasonably calculated to resolve the

doubt.’” Id. at 1164 (quoting Carmody, 509 A.2d at 461).

1

Deliberateness

From the outset, the parties disagree as to whether deliberateness is a requirement of the

knowing and willful standard. In Carmody, our Supreme Court explained that

20

“the requirement that an act be ‘knowingly and wil[l]fully’

committed refers only to the concept that there be ‘specific intent’

to perform the act itself, that is, that the act or omission

constituting a violation of law must have been deliberate, as

contrasted with an act that is the result of mistake, inadvertence, or

accident.” 509 A.2d at 459.

Similarly, in DiPrete, our Supreme Court concluded that the Ethics Commission “had before it a

record of sufficient evidence to conclude that DiPrete’s actions were deliberate and

unreasonable.” 635 A.2d at 1164 (affirming the Ethics Commission’s finding that the governor

had violated the code of ethics in connection with appointment of law firm to represent the state

where witnesses gave conflicting testimony, but the Ethics Commission gave weight to the

testimony of a witness who testified that the governor had told her that he wrote a memorandum

stating that outside counsel was needed and suggested the firm his business associate was a

partner of).

The Ethics Commission argues that this language in DiPrete does not amount to a finding

by our Supreme Court that deliberateness is a requirement of the knowing and willful standard,

but rather that deliberate conduct is inherently unreasonable and in bad faith, thereby more than

satisfying the requirement that the violation be knowing and willful. The Ethics Commission’s

construction of the Supreme Court’s language is tortured at best. A fair reading of Carmody and

DiPrete reveals that deliberateness is a requirement of knowing and willful.

B

Adequacy of the Commission Decision

Here, the Ethics Commission found that the Plaintiff’s failure to list the Society on his

Yearly Financial Statements for the years 2010-2015 constituted an unreasonable violation of the

Code of Ethics. See R. Ex. V at 9 (finding that “[u]nder the circumstances, the Respondent

should have known that such disclosure was required and the omission of his position on the St.

21

Thomas More Society was not reasonable”). Accordingly, in order to sustain the Ethics

Commission’s finding that the Plaintiff committed a knowing and willful violation of the Code

of Ethics, the evidence must have shown that the Plaintiff’s actions were deliberate and that he

“was at least aware of an appreciable possibility that he might be subject to the statutory

requirements, and he failed to take any steps to resolve that problem . . .” DiPrete, 635 A.2d at

1164.

The Ethics Commission’s findings of fact found that the Society is a nonprofit

corporation which filed annual reports with the Rhode Island Secretary of State, and that the

Society’s bylaws appointed the President to serve as a member of the Board of Directors and

chief executive of the Society. See R. Ex. V at 7. The Commission’s Decision also found that

the Plaintiff served as President of the Society during the years 2010-2015, and that for each of

those years the Plaintiff certified that he “read each question fully when filling out his 2010-2015

Financial Statements filed with the Ethics Commission,” and “would generally look at the filing

instructions if he didn’t understand the question.” Id. at 8. The Ethics Commission found that

“[t]he wording of Question 9 on the Financial Statements for

calendar years 2010-2015 clearly and unambiguously provided

notice to the Respondent, and would have provided notice to any

reasonable person, that the Respondent was required to list his

position as President of the St. Thomas More Society on his

Financial Statement. Under the circumstances, the Respondent

should have known that such disclosure was required and the

omission of his position on the St. Thomas More Society was not

reasonable. The Respondent did not call the Ethics Commission or

ask for an advisory opinion to seek clarification of the meaning of

Question 9, nor did he take any other steps that were reasonably

calculated to resolve any doubt as to whether he was required to

list his position as President of the Society on his 2010-2015

Financial Statements.” Id. at 9.

However, the Commission Decision failed to make any findings that the Plaintiff’s actions were

deliberate and/or that the Plaintiff was aware of any possibility that he may have needed to list

22

his position as President of the Society on his Yearly Financial Statements. In fact, the weight of

the evidence presented during the adjudicatory hearing shows that the Plaintiff specifically

testified that he did not know the Society was a corporation and that it never crossed his mind to

list the Society on his Yearly Financial Statements. See R. Ex. R at 63:10-13; 65:7-14. The

Prosecution presented no evidence to contradict this testimony, and therefore there was no

conflicting testimony which the Ethics Commission could have given weight to. Cf. DiPrete,

635 A.2d at 1162 (noting that where the Ethics Commission is presented with conflicting

testimony they are “free to weigh the credibility of all the witnesses and to decide the issue on

the basis of whom they believed to be more credible”).

As our Supreme Court has aptly stated, “had the Legislature intended to impose what is

in essence a strict liability standard, it would not have chosen to condition the imposition of

sanctions upon knowing and [willful] violations of the law.” Carmody, 509 A.2d at 460.

Accordingly, it is indisputable that there is an intent element that must be found before a

knowing and willful violation of the Code of Ethics can occur. See id. at 459 (holding that under

the knowing and willful standard there must “be ‘specific intent’ to perform the act itself . . . the

act or omission . . . must have been deliberate”).10 Here, the Ethics Commission impermissibly

10 Through the instant appeal, the relevant inquiry for this Court was not whether the Plaintiff

failed to list the Society on his 2010-2015 Financial Disclosure Statements, but rather whether

the Ethics Commission bore its burden of proof to show that the Plaintiff violated the Code of

Ethics with the requisite intent and in accordance with the provisions of § 36-14-13. As such,

the Court was required to apply the relevant statutory language as it was enacted by the General

Assembly. See Keystone Elevator Co. v. Johnson & Wales University, 850 A.2d 912, 918 (R.I.

2004) (noting that when a statute is clear and unambiguous there is no room for construction and

the statute must be applied as written). In the Code of Ethics, the General Assembly has

mandated that the Ethics Commission must prove a violation by a preponderance of the evidence

and must also prove that the alleged violator had the intent to violate the Code of Ethics. See

§ 36-14-13(a). The intent required by the General Assembly is not strict liability, negligence, or

even recklessness, but rather knowing and willful, which our Supreme Court has made clear is

tantamount to intentional or deliberate. See DiPrete, 635 A.2d at 1164. Here, the Ethics

23

applied a strict liability standard because it found, in essence, that because the wording of

Question Nine clearly required the Plaintiff to list his position as President of the Society and,

because Plaintiff failed to list it, he committed a violation of the Code of Ethics. However, the

Commission Decision contained no finding that the Plaintiff’s actions were deliberate or

intentional, and the weight of the evidence presented during the adjudicatory hearing supported a

conclusion that the Plaintiff’s actions were not deliberate. Accordingly, the Commission

Decision is clearly erroneous and affected by error of law. See § 42-35-15(g).

IV

Conclusion

Based on the foregoing, the Commission Decision is reversed as it is (1) in violation of

statutory provisions; (2) clearly erroneous in view of the reliable, probative, and substantial

evidence on the whole record; and (3) affected by other error of law. The substantial rights of

Plaintiff have been prejudiced. Accordingly, Plaintiff’s appeal is granted, and the Commission

Decision is vacated. Counsel shall prepare and submit an order and judgment consistent with

this Court’s Decision.

Commission failed to prove that it was more likely than not that Plaintiff’s omission of the

Society on his Financial Disclosure Statements was intentional and deliberate, rather than a mere

oversight that never crossed his mind. While it may seem unreasonable that an official can avoid

liability for an alleged financial disclosure violation simply by arguing that he or she did not

intentionally violate the Code of Ethics, the authority to amend § 36-14-13(a)(8) and change the

intent required to sustain a violation of the Code of Ethics lies exclusively with the General

Assembly, and “‘[i]t is not the function of this [C]ourt to rewrite or to amend statutes enacted by

the General Assembly.’” In re Proposed Town of New Shoreham Project, 25 A.3d 482, 511 (R.I.

2011) (quoting Pierce v. Pierce, 770 A.2d 867, 872 (R.I. 2001)); see also Such v. State, 950 A.2d

1150, 1157-58 (R.I. 2008) (citing 1A Norman J. Singer & J.D. Shambie Singer, Sutherland

Statutes and Statutory Construction, § 22:2 at 243 (“The power to amend statutes belongs

exclusively to the legislature.”)).

24

RHODE ISLAND SUPERIOR COURT

Decision Addendum Sheet

TITLE OF CASE: Francis X. Flaherty v. The Rhode Island Ethics

Commission, et al.

CASE NO: PC-2019-5088

COURT: Providence County Superior Court

DATE DECISION FILED: July 24, 2020

JUSTICE/MAGISTRATE: Stern, J.

ATTORNEYS:

For Plaintiff: Marc Desisto, Esq.

For Defendant: Katherine D’Arezzo, Esq.

Jason M. Gramitt, Esq.