PROVIDENCE — The fine came to just $200.
But a Rhode Island Supreme Court justice has spent the past year fighting a legal battle, paid for by a publicly financed insurance policy, to avoid that ethics code penalty.
In February 2019, the state Ethics Commission fined Justice Francis X. Flaherty $200 for failing to disclose that he was the president of a Catholic legal group while he was ruling on a priest sexual abuse case.
Flaherty appealed the ruling nearly a year ago, and oral arguments are set for Wednesday morning in state Superior Court before Judge Brian P. Stern.
“Normally, people settle for a nominal fine, but Justice Flaherty seems to be trying to make some points about his view of the code of ethics,” said John M. Marion, executive director of Common Cause Rhode Island. “It seems like a giant waste of time and resources.”
Flaherty declined to comment Tuesday, and his lawyer, Marc DeSisto, said he won’t comment until the case is over.
But Flaherty’s legal challenge claims the Ethics Commission violated his due process rights and exceeded its authority. He also argues that the former chairman of the commission, Ross E. Cheit, should have recused himself because the priest sexual abuse case involved Cheit’s area of expertise — repressed memory.
Cheit, a Brown University political science professor, has done extensive research on child sexual abuse, and in his blog, “The Recovered Memory Project,” he has criticized the Catholic Church and those who advance “technical defences,” the legal memos say.
The commission has rejected that argument, pointing out that its members don’t participate in the investigation or prosecution of ethics complaints. It also refuted Flaherty’s implication that Cheit is biased.
“The cornerstone of (Flaherty’s) defense in this case has been the offensive and unfounded claim that Ethics Commission Chairperson Cheit harbors anti-Catholic sentiments," the commission wrote.
Flaherty, who makes $208,000 a year, is not paying for DeSisto to pursue the case against the Ethics Commission.
Rather, DeSisto’s legal bills are being paid by an insurance policy that covers all state judges in legal matters related to their duties, courts spokesman Craig N. Berke said. The court system does not know how much those legal bills have totaled, he said.
The annual premium for that insurance policy jumped from $72,000 in 2016 to more than $142,000 this year, Berke said, after a disciplinary panel found that former District Court judge Rafael Ovalles, who resigned in 2017, had mistreated people appearing before him.
The Ethics Commission has not hired outside lawyers for the Flaherty case; executive director Jason M. Gramitt and senior staff attorney Katherine D’Arezzo have been handling it in-house. “We don’t bill hourly, but conservatively between the two of us it has been hundreds of hours,” Gramitt said.
If the case ends up going to the state Supreme Court, the Ethics Commission might hire an outside lawyer, at least for consultation, he said.
The commission fined Flaherty after receiving a complaint from Helen Hyde, who claims she was sexually abused by a priest more than 40 years ago. She sued the Roman Catholic bishop of Providence, but the case was thrown out because the statute of limitations had passed. Flaherty wrote the unanimous Supreme Court opinion rejecting Hyde’s appeal.
The commission fined Flaherty, who has been on the state’s high court since 2003, for failing to disclose his involvement with the St. Thomas More Society, described in legal memos as an “informal” or “loosey-goosey” group whose main purpose in Rhode Island is to hold an annual Red Mass to commemorate the opening of the court term. It does not own property or have an annual budget.
Flaherty says in court papers that he “dutifully listed all of the for-profit and nonprofit entities with which he is associated,” and it “never came to his mind” that he would be required to disclose his involvement with the society. He says the Ethics Commission impermissibly expanded the definition of the term “business entity” to include any nonprofit organization, including the society.
He also argues that the commission was required, but failed, to show that he “deliberately” omitted his involvement with the society, and violated his due process rights through its dual role of investigating and adjudicating complaints.
Flaherty apparently believes his reputation is on the line. One of his legal memos begins by saying: “A jurist and attorney with more than 30 years of an unblemished ethics records is now being told that he ‘knowingly and willfully’ failed to comply with the Ethics Code.”
The Ethics Commission says the “clear language” of financial disclosure forms required Flaherty to disclose if he was an officer of a nonprofit of any type. And it pushed back on one of Flaherty’s arguments, saying it was not required to find that Flaherty acted “deliberately” and followed a “knowing and willful” standard articulated by the state Supreme Court.
Marion, of Common Cause, said Flaherty has every right to appeal the commission’s decision. “Unfortunately, Justice Flaherty makes an argument that, if successful, would dangerously undermine the power of the state’s Ethics Commission,” he said.
Marion said Flaherty is arguing, in part, that the Ethics Commission can’t adopt regulations more stringent than the ethics code enacted by the General Assembly. “If the court were to agree with Justice Flaherty, it would be reversing decades of precedent and seriously undermining the effectiveness of ethics enforcement in Rhode Island,” he said.
The commission’s Gramitt said $200 represents a “fairly standard amount of fine” for failing to make a disclosure on an annual financial disclosure statement.
“The important point is we feel we have to treat everyone the same,” he said. “If we are going to prosecute cases against municipal appointed officials who volunteer their time, we certainly have to prosecute them against higher-level officials. We have to be fair and even-handed.”