May 27, 2010

Erik Wallin's Anti-Corruption Plan, Part 2

Carroll Andrew Morse

During yesterday's campaign event where Rhode Island Attorney General candidate Erik Wallin unveiled his anti-corruption legislative package, I had the opportunity to ask the candidate about the importance of the law versus the surrounding political culture when it comes to fighting public corruption...

Erik Wallin: "It is important for the people to understand, and part of the process is educating the people, about the costs of public corruption to them..."
Here is part 2 of the list of specific proposals being offered by Mr. Wallin to deal with the problem of corruption in Rhode Island...
  1. EW: "We will also suspend from public office any individual who is in fact under indictment for charges of public corruption..."

    45-4-19. Suspension from office during indictment and loss of office by conviction -- (a) any "Public official" or "public employee" as defined in 36-14-2(4), 36-14-2(9), 36-14-2(10) except for those general officers and general assembly members elected pursuant to Articles VII, VII and IX of the Rhode Island Constitution, may, during any period such official or employee is under indictment for misconduct in such office or employment or for misconduct in any elective or appointive public office, trust or employment at any time held by him, be suspended by the appointing authority, whether or not such appointment was subject to approval in any manner.

    (Extra: I asked Mr. Wallin about the specific application of his proposal to the councilmen in North Providence. His answer was that "under my legislation...they would have been automatically suspended from their elected positions...")

  2. EW: "I will establish on day one of my administration a public corruption task force within the office of Attorney General..."
    42-9-2.1 -- Public Corruption Task Force -- (a) There shall be established within the department of attorney general a division of public corruption known as the Public Corruption Task Force the purpose of which shall be to investigate and prosecute all state and local employees and elected officials as defined in 36-14-2(4), 36-14-2(9), 36-14-2(10), 36-14-2(14), and 36-14-2(1) in conjunction with the Office of Investigations as defined in 42-9-8.1, and/or any federal, state, or municipal law enforcement agency of matters determined by the attorney general to potentially be a violation of 11-7.1 (public corruption) and 11-7 (bribery).

    (b) Composition -- the Public Corruption Task Force shall be comprised of, but not limited to, the following:
    (1) three (3) prosecutors each with greater than seven (7) years prosecutorial experience;
    (2) one (1) forensic auditor;
    (3) any other department of attorney general employee determined to be necessary for the purpose of the Public Corruption Task Force, including, but not limited to, the Office of Investigations as defined in 42-9-8.1.

  3. EW: Cites the situation in Central Falls and current Attorney General Patrick Lynch as an example of the need for a new special prosecutor law in RI...

    ...and lays out a new process for the appointment of a special prosecutor, when the AGs office is conflicted.

    42-9.2-3. Appointment of a Special Prosecutor. -- If an occasion arises with respect to the conduct or alleged conduct of any person that would call for an investigation and/or prosecution by the Attorney General, and the Attorney General believes that he or she, or anyone in the Attorney General's department, has an actual or perceived conflict of interest because of an actual or perceived relationship, past or present, with such person, or with any person or entity associated with such person, the Attorney General may recuse himself by written notice to the Panel as defined in 42-9.2-4. Contemporaneous with the Attorney General's written notification to the Panel, the Attorney General shall by written notice direct the Panel as defined in 42-9.2-4 to appoint a Special Prosecutor to act in the place and stead of the Attorney General in the investigation and/or prosecution of such person.

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Ok, questions about two of the points:

1. I understand that an indictment is more than an accusation, it requires that someone (a judge? the grand jury?) finds that there is reasonable cause to go forward with the proceedings. And I understand that the bill says the accused would only be suspended. However, this seems like an area where the ACLU can jump in there and sue based on "innocent until proven guilty". No?

2. The appointment of the special investigator. I read that if the situation arises where the AG perceives a conflict of interest, the office can request a special investigator. But what if there is a conflict of interest, but the AG doesn't believe that there is either a law broken or not enough to actually charge someone? I'm guessing that was the case with the RIRR, Station Fire and Charlie Moreau. If the AG came out and said that laws were definitely broken in all those cases but he simply can't go forward only because he's buddies with those people, then that's clearly the AG not doing his job. I understand that this is mostly likely the case for Lynch, but he has never come out and said that he believes laws were broken to the point of where he believes he can get a conviction.

Posted by: Patrick at May 27, 2010 9:21 AM

Giving the very political Attorney General of Rhode Island the power to have anyone in state government suspended at any time simply by bringing an indictment against them? This is insanity. Wallin's proposal might very well violate due process or other constitutional requirements.

His "political corruption task force" will cost the state at least an extra $500,000 every year in public employee salaries and benefits alone, whether or not they actually prosecute anyone. Just throwing that out there in case anyone actually cares about the size of state government anymore.

Posted by: Dan at May 27, 2010 11:02 AM

Leaving some one on the job, after they have been indicted for an "on the job" offense is silliness. The opportunity to alter testimony by exercise of the powers of the office, access to files which can be destroyed, tamper with evidence. etc. etc.

Posted by: Warrington Faust at May 27, 2010 3:01 PM

An indictment is not a conviction, it is simply an accusation. Acquittals in public corruption cases are not uncommon. There are serious due process and separation of powers concerns with allowing the political Attorney General to basically remove any political opponents from their offices for what could be years as the wheels of justice slowly turn. Evidence gathering takes place before an indictment is brought, so tampering is not really a concern, not to mention that that itself is a serious crime. This bill is a very bad idea and is probably unconstitutional for more than one reason, not that I would expect Wallin to appreciate such concerns.

Posted by: Dan at May 27, 2010 3:22 PM

Actually Dan, the proposed legislation excerpted above is clear that it will not apply to legislators (or other general officers) so there is no separation powers issue. Denigrating someone's work without actually examining it, because they didn't go to the right school or because they don't share your ideology, is indicative of lazy habits of the mind that elitism breeds. Thanks for the continuing illustration of this.

I'm not quite sure why you have such a bug up your butt about Erik Wallin, but about a week ago, there was a post at RI Future (where you regularly comment) about Democrat Joe Fernandez announcing his version of an "anti-corruption bill of rights", and you had nothing to say about how the absence of a plan to turn the AGs office into the state's Drug Legalization Advocate meant that he didn't understand the real issues. Is that because Fernandez went to Harvard Law where, in Dan's world, that's all the public needs to know, to assume that he will automatically be better at carrying out public corruption enforcement than anyone else?

Posted by: Andrew at May 27, 2010 6:11 PM

Vertical separation of powers, Andrew, vertical. Although there would still certainly be members of the other branches of government affected by this bill, and the due process considerations are extremely troubling in their own right.

Your characterization of my consideration of academic merit as some kind of Ahab-like obsession at the expense of all other factors is a blown-out-of-proportion caricature and straw man. Any reasonable person considers academic merit as a major factor when making legal hiring decisions or, to a lesser extent, voting decisions. The law is largely academic by its nature, and most within the field would readily acknowledge that which law school a person attends is the largest single determining factor in their career. I am all for giving every single person a chance to distinguish themselves, but it is only rational to weight candidates who have a strong academic background more heavily unless they have proven themselves to be of extraordinary talent or insight in practice (this candidate has neither).

The reason I have not commented about Fernandez is because we don't know much about him, which I'm sure is intentional at this point. We don't know whether he supports decriminalization or not. He is a Democrat so there's a better chance, but if he comes out against it I will be just as harsh. I blasted Archambault on RIFuture when he made an idiotic comment about marijuana saying that decriminalization would send the wrong message, which I assume was a misguided attempt to look tough on crime since no thinking person could possibly believe that. He did say that he was for probation reform, which is another common-sense issue that every candidate should be supporting. If I have a bug up my butt about Wallin it is because of everything I have said: this should be the easiest seat to win for the RIGOP to win at this point and they found probably the worst cartoon character of a candidate imaginable to which only the hardest core law and order conservatives could possibly relate. Who could possibly think that a statement like "sexual predators are lurking in our alleyways" would get the public behind him? We need common sense ideas about how to prioritize office resources and he's living in a Dungeons and Dragons universe fighting invisible rape trolls.

Posted by: Dan at May 27, 2010 8:59 PM


There is no such thing as vertical separation of powers between state and municipal government in the American system. States are the most fundamental units of government, and they are the source of both the unit above and the units below. States create city and town governments and can create the qualifications that local officials have to meet. So you've bombed the academic merit test on this, despite whatever superficial credentials-comparison you think you might win.

Last September, Erik Wallin published an Engaged Citizen piece here at AR. You were the 1st commenter to it, and your response consisted mainly of saying that it wasn't about the drug war. Readers can take that fact, along with your explanation of your non-response to Fernandez's corruption post, and decide for themselves how balanced and rational your response has been.

Posted by: Andrew at May 28, 2010 12:02 AM

Not entirely accurate, but I have no desire to get into a legal pissing contest. I'll just end by saying I am disappointed that the RIGOP is intent on martyring itself on an utterly brain-dead law and order cross in this race when a halfway thoughtful candidate with some minimal credentials could have easily swept up the seat. Wallin's platform is out of touch with RI voters and all reality if we're being honest with ourselves.

Posted by: Dan at May 28, 2010 9:10 AM

I think the real solution to many of the issues of public corruption is competition. One office and essentially one office holder decides if cases have merit.

District attorneys covering each the RI counties would create competition. There would be public dialog and competition for being tough on crime. There would be a record of crime prevention that the public could consider for future AGs in the State.

Dan's use of first tier law schools and academic success to determine qualification should be a consideration. But, it does not necessarily correlate with being able to protect the interests of the public.

Nor does it necessarily correlate with bar passage rate. Campbell U. Law School comes to mind as an example. Highest average overall Bar Passage Rate among NC Law Schools for past 15 years. Higher than Duke. Higher than Chapel Hill. Higher than UVA.

I think we have seen over and over again how public corruption is one of the biggest expenses to the State, Cities, and Towns. Central Falls. Woonsocket. Providence. North Providence. Pawtucket. Jamestown Bridge. Landfill. Zoning resulting in flooding, sewage on the beaches, and contaminated drinking water. All became headlines that affect business and productivity along with projecting a negative image of RI to the rest of the world.

All it takes is a few good, honest people in the right positions who will hold the line against corruption. You can't rely on one person with absolute power without competition, no matter how good their intentions might be. There needs to be a structural change.

Posted by: Robert Balliot at May 28, 2010 9:39 AM


No, of course, who would want to describe the substance of a proposal (especially when you are wrong on the law) when we all know that it's the credentials of the presenter that really matter.


I did a quick search around the internet, and at least a few states have provisions for removing officials under indictment, though it's usually not automatic, i.e. the Governor or a commission of some kind has to move to suspend an indicted official. Georgia even has a process for suspending legislators in its Constitution (though their process doesn't mention municipal officials). Of couse we need to bear in mind that a state like Georgia may not have as much of the enlightened attiude of "corruption, what ya gonna do?" that we have here in RI.


I've heard mentioned before that one problems with RI's justice system is that the state-level of centralization creates a single, very small and very interconnected set of authority figures that legal professionals have to be careful not to get on the wrong side of, which is another reason that your decentralization idea would be worth a look, at least in the ideal.

Posted by: Andrew at May 28, 2010 1:45 PM

Robert, thank you for the reasoned response, but bar passage rate is not a good metric. I don't believe it's even used in the US News rankings. I think you understood what my point was, which was certainly not that people with good ideas should be disqualified based on the school name appearing on their diploma, which Andrew seemed to think I was saying. I would even vote for a non-lawyer or somebody who went to an unaccredited law school if they had a common sense platform on how to fix the broken drug war and bring good talent into the state. Of course when the candidate's ideas are a giant suckfest like Wallin's, lack of credentials can be a final nail in the coffin.

Posted by: Dan at May 28, 2010 2:30 PM
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