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Larisa v. Rhode Island Ethics Commission

Superior Court of Rhode Island

September 3, 2014

JOSEPH S. LARISA, JR.
v.
RHODE ISLAND ETHICS COMMISSION; ROSS E. CHEIT; DEBORAH S. CERRULLO; J. WILLIAM HARSCH; JAMES
v.
MURRAY; FREDERICK K. BUTLER; JOHN LYNCH, JR.; and MARK B. HEFFNER

Providence County Superior Court

For Plaintiff: Joseph S. Larisa, Jr., Esq.

For Defendant: Katherine D'Arezzo, Esq.

DECISION

MCGUIRL, J. JUSTICE/MAGISTRATE

Before the Court is the appeal of Joseph S. Larisa, Jr. (the Appellant or Larisa) seeking reversal of a decision of the Rhode Island Ethics Commission (the Ethics Commission), which found that Larisa committed a knowing and willful violation of G.L. 1956 § 36-14-5(e)(2) and imposed a civil penalty of $1000. Larisa also claims that his due process and equal protection rights under the United States Constitution have been violated and alleges a violation of 42 U.S.C. § 1983. Jurisdiction is pursuant to the Rhode Island Administrative Procedures Act (the APA), G.L. 1956 § 42-35-15.

I

Facts and Travel

The underlying facts are not disputed. Appellant Larisa has a long history of elected membership on the East Providence City Council (the City Council). (Ethics Commission Decision at 3.) Larisa served as an elected member of the City Council from late 1992 to late 2002, from late 2004 to December 7, 2006, and from late 2008 to December 6, 2010. Id. During much of that time, Larisa also served as the Mayor of East Providence, having been duly elected by the City Council membership. Id. It is undisputed that, at all relevant times, Larisa was subject to the Rhode Island Code of Ethics in Government. Id. As part of his responsibilities as a City Council member, and as specified by article II, section 2-14 of the East Providence City Charter, Larisa also participated in the City Council's appointment of East Providence Probate Court Judge Christine J. Engustian (the Probate Judge) on December 1, 2008. Id. at 4. In addition to his official role in municipal politics, Larisa has also served as executive counsel to the former Governor Almond, acting as the Almond administration's "ethics officer." Id. at 6.

In his private capacity, Larisa was also employed at all relevant times as an attorney with Larisa Law and Consulting, LLC, in Providence. Id. at 3. In November 2005, Larisa began representing the interests of Marilyn W. Jones (Ms. Jones). Id. at 4. This included advocating for Ms. Jones's rights as a principal beneficiary and co-trustee of the Norman F. Jones Revocable Trust (the Jones Trust). Id. On the advice of Larisa, Ms. Jones also simultaneously retained separate legal counsel to help protect her interests under the Jones Trust. Id. at 4, 6.

During the period between May 25, 2006 and June 8, 2010, matters relating to the Jones Estate appeared before the Probate Court for hearing on ten occasions. Id. at 4. Larisa was the Jones family's principal attorney on these matters and he appeared before the Probate Court on four individual dates as the family's representative, including May 25, 2006 and March 9, 2010. Id. at 4-5. It is undisputed that Larisa was a member of the City Council on both of those dates. It is also undisputed that Larisa's legal representation in the Probate Court matters was the result of a longstanding, continuous relationship with the Jones family. Id. at 5. At the March 9, 2010 Probate Court hearing before the Probate Judge, Larisa represented the guardian of the person and estate of Ms. Jones regarding a petition for sale of personal estate, by which the guardian sought to sell and dispose of personal property belonging to Ms. Jones. Id. at 4-5. Larisa appeared at the request of Ms. Jones's separately retained counsel, who was unavailable, and received no compensation for his appearance before the Probate Judge on that date. Id. at 5-6. In addition, the City of East Providence did not have an interest in the relevant proceedings before the Probate Court and was not a party to the proceedings. Id. at 5. On the day of the hearing, the Probate Judge granted the petition for sale of personal estate. Id.

A complaint was filed against Larisa with the Ethics Commission on October 1, 2010. Id. at 1. The complaint alleged that Larisa had violated § 36-14-5(e)(2) by representing clients before the Probate Court on May 25, 2006 and March 9, 2010 because he simultaneously held elective office on the City Council, which exercises appointing authority and fiscal control over the Probate Court. Id. at 1-2. The Ethics Commission determined that Larisa did not commit a willful and knowing violation of the Code of Ethics by appearing before the Probate Court on May 25, 2006 because Regulation 5016, which "redefined" relevant portions of § 36-14-5(e)(2), did not take effect until October 22, 2006, months after the alleged May 25, 2006 violation. Id. at 2. However, the Ethics Commission determined that Larisa's appearance before the Probate Court on March 9, 2010 did constitute a knowing and willful violation of § 36-14-5(e)(2) because Regulation 5016 had already taken effect. Id.

The Ethics Commission issued its Decision and Order (the Decision) on November 9, 2011. Id. at 15. The Decision states that Regulation 5016 "redefined R.I.G.L. § 36-14-5(e)(2) so that a municipal official is now prohibited from appearing not only before his or her own agency, but also before an agency over which the official has appointing authority." Id. at 2. Pursuant to § 36-14-15, Larisa filed his appeal of the Decision of the Ethics Commission with this Court on December 9, 2011. Larisa also seeks relief under 42 U.S.C. § 1983 and contends that the Ethics Commission has violated the Rhode Island Supreme Court's exclusive constitutional authority to regulate the practice of law in this state.

II

Standard of Review

Any action by the Ethics Commission shall be subject to review pursuant to the APA. See § 36-14-15. Therefore, this Court has jurisdiction over Larisa's appeal pursuant to § 42-35-15, which sets forth the following standard of review:

"(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 42-35-15(g).

Therefore, this Court is limited to determining whether there is any legally competent evidence to support an agency's decision. Envtl. Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993). "Legally competent evidence is indicated by the presence of 'some' or 'any' evidence supporting the agency's findings." Id. "'If competent evidence exists in the record considered as a whole, the court is required to uphold the agency's conclusions.'" Id. (quoting Barrington Sch. Comm. v. Rhode Island State Labor Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992)). It is the Court's duty "to determine what the law is and its applicability to the facts." Chenot v. Bordeleau, 561 A.2d 891, 893 (R.I. 1989) (citing Carmody v. Rhode Island Conflict of Interest Comm'n, 509 A.2d 453, 458 (R.I. 1986)). Determinations of law made by an agency are subject to a de novo standard of review. See Arnold v. Rhode Island Dep't of Labor and Training Bd. of Review, 822 A.2d 164, 167 (R.I. 2003) (citing Johnston Ambulatory Surgical Assocs. Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000)); In re Advisory Op. to the Governor (Rhode Island Ethics Commission—Separation of Powers), 732 A.2d 55, 60 (R.I. 1999) (stating that "whether the ethics commission possesses the requisite authority to promulgate" a regulation is a legal question subject to de novo review "without deference to the agency's interpretation").

III

Analysis


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