Opinion
C. A. PC-2019-5088
07-24-2020
FRANCIS X. FLAHERTY, Plaintiff, v. 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.
For Plaintiff: Marc Desisto, Esq. For Defendant: Katherine D'Arezzo, Esq. Jason M. Gramitt, Esq.
For Plaintiff: Marc Desisto, Esq.
For Defendant: Katherine D'Arezzo, Esq. Jason M. Gramitt, Esq.
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 Rhode Island (Society) on his annual financial disclosure filings with the Ethics Commission. 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.
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.
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 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. Id.
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.
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, 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 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. The Prosecution also presented the Instruction Sheets which accompanied each Yearly Financial Statement for the years 2010-2015. For the years 2010-2013, 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
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 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.
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.
"[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 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. 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.
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).
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 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. 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 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.
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 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. 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.
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 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 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. See R. Ex. V at 6. When the Ethics Commission resumed to open session, they unanimously voted
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.
"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.
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 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. After considering oral and written arguments, the Court now decides the instant administrative appeal.
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 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. 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.
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 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 standard 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.
Strict liability is liability that does not depend upon proof of negligence or intent. See Black's Law Dictionary, 11th ed. 2019.
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 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.
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
"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. 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 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"). Here, the Ethics Commission impermissibly 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).
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 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.")).
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.