PROVIDENCE, R.I. — Should detailed investigation records into alleged ethical breaches by public officials be kept secret if they don't lead to prosecution?
The Rhode Island Ethics Commission is again debating that question after settling a lawsuit by Smithfield Zoning Board member Antonio Fonseca, who claimed his reputation had been damaged when he was investigated but never charged.
Under its current regulations, the Ethics Commission releases the prosecutor's investigation record whether or not it decides there is probable cause of a state Code of Ethics violation.
Following the Fonseca lawsuit, the commission is considering a range of policy changes including keeping the investigation report private, redacting parts of it, replacing it or supplementing it with a new report explaining why commissioners decided probable cause had not been met.
After a brief public workshop on the question Tuesday morning, the commissioners ordered staff to prepare a range of potential regulation options they could pursue in a new rule-making process.
"To me going backwards is not the direction," said Commissioner Douglas Bennett. "Someone is entitled to know why a lead was not followed up on."
Fonseca sued the Ethics Commission last year after it looked into a complaint filed by a Smithfield resident accusing him of failing to disclose business between his packaging company and the town. The commission disagreed with its prosecutors that there was probable cause of an ethics violation, but released the prosecutor's investigation report, which became the source of attacks against him at local meetings.
To settle the case, the commission agreed not to release Fonseca's investigation report in the future and to review its procedures. Fonseca gave up his pursuit for financial damages.
Fonseca isn't the first public official to argue in court that the state law creating the Ethics Commission bars it from releasing investigation reports.
In 2000, Superior Court Judge Michael Silverstein ordered the commission to keep major portions, but not all, of an investigation report on then-Cumberland Mayor Francis Gaschen secret after Gaschen sought an injunction.
For roughly seven years after that ruling, the commission redacted major details from investigation reports until reversing course and writing new regulations meant to increase transparency around its decisions.
The Fonseca settlement prevented a decision on the underlying question of whether its policy to release investigation reports is legal.
The investigation report debate represents the latest effort to balance the public interest in transparency around Ethics Commission deliberations with due process concerns by officials who claim complaints are often weaponized by political opponents.
Common Cause Executive Director John Marion testified Tuesday that the Ethics Commission would be better off redacting portions of investigation reports than keeping them from the public entirely.
— panderson@providencejournal.com
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On Twitter: @PatrickAnderso_