2002 No Action
2001 No Action
2000 No Action
1998 No Action
1995 No Action
July 3, 1998
TO THE HONORABLE, THE SENATE:
I am transmitting to the Secretary of State, without my signature, 98-S 2830, Substitute A, As Amended, "An Act Relating to the Code of Ethics."
The Ethics Commission presently dismisses any complaint for which it finds no probable cause that the Code of Ethics was breached. This bill, in such circumstances, provides that "if it finds the complaint to be frivolous, unreasonable, or groundless, the commission shall require the person filing the complaint to pay a civil penalty of not more than five thousand dollars ($5,000), all or part of which may be paid to the subject of the complaint in reimbursement of said subject's reasonable expenses of defense."
Some are concerned that this bill would have a chilling effect on legitimate ethics complaints. If true, I would veto this bill. A close reading of the bill, however, indicates that the Ethics Commission itself will retain the power to encourage meritorious complaints while carefully using its discretion to deter the filing of complaints known not to be true or intended to harass a public official. The bill does little more than statutorily empower the Commission to do that which it can already do by regulation.
The Ethics Commission retains discretion on whether to assess any fine in three crucial areas. First, the Commission is under no statutory obligation to make a frivolousness determination in any case that it dismisses (especially where the defendant has not requested it). Second, if the Commission decides to hold a hearing to determine the issue, it alone determines whether any such complaint is "frivolous, unreasonable, or groundless." Third, even if it makes such a determination, the Commission retains sole discretion regarding the amount of the corresponding civil penalty, which could be as little as a dollar. The bill does not require the Commission to award the full costs of defense, but provides discretion to do so. I trust the Commission to use this power infrequently and wisely.
Under long-established federal and state law, anyone filing a complaint in state or federal court is subject to sanction if the complaint is frivolous. The test to be applied before any fine is assessed in this Act is a well-established test borrowed from federal civil rights cases in considering an award of attorneys fees. Properly implemented by the Commission, there should be little or no chilling effect on the filing of legitimate complaints. On the other hand, there will (and should be) a significant deterrent to a complaint that the filer knows has no basis in fact, is filed simply to harass, or is otherwise brought in bad faith. The standard can be further elucidated by Commission regulation if necessary, as can the format for a hearing process on any potential fine. Importantly, the public is further protected by the availability of the Commission staff to discuss the applicable ethics rules before the filing of a complaint. In sum, it is nearly inconceivable that a citizen, who in good faith believes that a violation of the Code of Ethics may have occurred, would ever be fined by the Commission under this provision.
It is also important to note that Rhode Island is not alone. A number of states allow their Ethics Commissions the power to assess penalties for frivolous complaints. A quick search has revealed that ethics commissions in at least four other states (Oklahoma, Florida, Pennsylvania and Texas) already possess the same power as this bill will provide to our Commission.
With the above explanation, I allow this bill to become law without my signature.