By JIM BARON

PROVIDENCE — Voters carved out a limited exception to the Rhode Island Constitution's “speech in debate” clause when they approved a new ethics commission proposed by constitutional convention in 1986 and gave it powers to police the way elected officials use their office, Jason Grammit, attorney for the state Ethics Commission, told the Rhode Island Supreme Court Wednesday.

The commission is appealing a ruling by Superior Court Judge Francis Darigan that the speech in debate clause gives immunity to former Senate President William Irons against an ethics commission charge that he abused his position as a senate committee chairman to kill legislation for the benefit of clients of his private insurance practice — CVS and Blue Cross/Blue Shield of Rhode Island.
John Tarantino, Irons' lawyer, said it works the other way around: the speech in debate clause, reaffirmed with the same vote that approved the commission, carves out a narrow exception to the Ethics Commission's power to call elected officials on the carpet for their behavior.
That is the constitutional knot four justices of the high court must try to untangle, unless they take the advice of Attorney General Patrick Lynch and decide they don't have to.
Before Grammit got out the first couple of words in his presentation to the court, Justice William Robinson interrupted to ask about Lynch's contention in a friend of the court brief that the court does not have to address the constitutional issue because in 1999 the Ethics Commission issued an advisory opinion to Irons saying he “may participate and vote on legislation relating to pharmaceutical health insurance benefits.”
One of the few things the two sides agreed upon during the entire hearing is that they do not want the court to take that out and both urged the justices to decide the constitutional issue.
Grammit said the commission has not determined whether Irons omitted or misstated any pertinent information in his request for the advisory opinion. That would be an issue of fact to be determined during an adjudication of Irons' case, he said. Not only that, but since Darigan's ruling the Ethics Commission has refrained from handling any matter concerning legislators' use of their office pending a decision from the high court on their appeal.
Tarantino said the advisory opinion would be part of a defense at an adjudication, but Irons maintains that the immunity afforded by the speech in debate clause protects him from even having to mount a defense, in fact it
protects him from being tried in the first place.
The speech in debate clause states that, “for any speech in debate in either house, no (General Assembly) member shall be questioned in any other place.”
Acting Chief Justice Maureen McKenna Goldberg sat out the case because she is a longtime friend of Irons' wife, Mary. The hearing was led by the next senior justice, Frank Flaherty. Also participating were Justices Paul Suttell and William Robinson, along with retired Chief Justice Frank Williams.
Outside the courthouse, protesters, many from the watchdog group Operation Clean Government, held signs bearing slogans such as “Speech in Debate is not a License to Steal,” “Let the Ethics Commission do its job,” and “Don't kill ethics in Rhode Island.” It was two OCG members who filed the original ethics complaint against Irons.
“Are we going to have a double standard for the application of ethics in this state, or are all our elected and appointed officials going to be subject to the code of ethics?” asked one of the sign holders, Robert “Al” Benson. He said the speech in debate clause allows lawmakers to vote any way they like, “unless they use their vote to break the law.”
Grammit pointed out that in a 1992 opinion, the court ruled that the 1986 constitutional change amounted to “an implied modification of legislative powers” because it gave the ethics commission the authority to write its own ethics laws that the General Assembly did not have to approve and could not change.
He asserted that such an “unheard-of grant of authority...is further evidence of the lengths that the drafters (of the amendment) and the voters felt they needed to go to change the landscape of government in the state of Rhode Island. There is no other state in the country since 1986 or currently that has that kind of system of legislating ethics in state government. It never existed until then and it still doesn't exist except here in Rhode Island.”
For the last 22 years, Grammit argued, the people have assumed the Ethics Commission has jurisdiction over the legislature “and the legislature has clearly assumed that we have the jurisdiction.”
Acknowledging that the Ethics Commission would still have jurisdiction over legislators in terms of financial disclosures and other provisions of the ethics code even if Irons prevailed in this case, Grammit said the “key provision that we believe history shows the public intended to apply to all state elected officials is use of position – how does a legislator use his position? By legislating. That's what the ethics code does, it regulates the use of office. It is meant to regulate what a public official does in a public capacity.”
Tarantino retorted that “We have never suggested or argued that Sen. Irons as a legislator was not subject to the code of ethics.”
Williams asked “what would be left” for the Ethics Commission to have jurisdiction over legislators for. Tarantino answered, “There are many things...that have nothing to do with how a legislator voted or participated in legislation – improper activities performed for constituents, making of appointments with governmental agencies, assisting and securing state or governmental contracts, dealing with the executive branch, preparing newsletters to constituents, speeches delivered outside the assembly, filing false or incomplete reports or the failure to file reports, filing of false or incomplete financial information and of course criminal actions including bribery not based on the vote, the participation of core legislative activity.”
For such matters, he said, legislators would be subject to the code of ethics and could be disciplined and charged and prosecutors. The Ethics Commission, he said, “can prosecute legislators for anything but legislative activities. The United States Supreme Court has said consistently that a legislator can be convicted of bribery, but the proof can't be the vote,” Tarantino said.
The ethics code and the speech in debate clause “can co-exist.” Tarantino told the court. “One isn't eviscerated by the other.”