RI Ethics Commission wants Councilman Aponte’s lawsuit dismissed

PROVIDENCE, R.I. (WPRI) – Attorneys for the Rhode Island Ethics Commission have asked a Superior Court judge to dismiss a lawsuit filed by Providence City Councilman Luis Aponte that argues he has “absolute legislative immunity” from the commission.

The commission’s lawyers filed a motion to dismiss the suit on May 31, arguing that Aponte “is not immune” from the commission’s enforcement of the Rhode Island Code of Ethics while also suggesting Aponte’s complaint “does not properly invoke the court’s jurisdiction.”

Aponte filed suit against the commission in April in an attempt to freeze an ongoing probe into his 2016 vote to rezone a property owned by his then-landlord. Aponte claims the commission had “no jurisdiction to bring any charges of violations” of the state ethics code against him based on his voting record because of his “common-law legislative privilege.”

In its request for a dismissal, the commission argues that local elected officials do not have the same level of legislative immunity that members of the Rhode Island House and Senate enjoyed until last November, when voters approved a change to the state constitution restoring the commission’s full oversight over the General Assembly.

The commission also suggested that Aponte’s vote to rezone a property was an administrative action and is not subject to legislative immunity.

The commission noted that it has investigated 12 complaints against local legislators involving conflicts of interest or use of public office allegations in the last eight years. It has also issued 60 advisory opinions to local elected officials who sought guidance on the application of the code of ethics during the same period.

The commission also argued that the appropriate procedural mechanism for Aponte would have been to file a complaint under the state’s Administrative Procedures Act rather than asking for a declaratory judgment.

Reached Monday, Edward Roy, Aponte’s attorney, said he disagrees with the commission’s position. He said the courts recognized legislative privilege before the Ethics Commission was ever established.

In January the Ethics Commission voted unanimously to find probable cause that Aponte violated the state code of ethics in 2016 when he twice voted in favor of the zoning change for a property at 53 Doyle Ave. owned by Keith Fernandes. (The City Council voted unanimously to approve the change.)

The initial complaint, filed by city resident Allen Hance, accused Aponte of having a “business associate relationship” with Fernandes because Aponte lived in a separate property owned by Fernandes at the time of the vote. (Aponte has since moved to another location.)

A landlord/tenant relationship is considered a business association under the code of ethics, according to the commission.

Aponte has long maintained that he was not aware that Fernandes was the owner of the property that received the zoning variance and Fernandes has said he intentionally did not have conversations with members of the City Council to “keep politics out of it.”

Following a probable cause vote, the commission typically negotiates a settlement or adjudicates the matter. Although the commission has the ability to fine violators of the ethics code up to $25,000, penalties are usually much smaller. No adjudication hearing has been scheduled.

The commission’s probe is unrelated to the criminal charges Aponte is currently facing for allegedly misusing his campaign account. A statewide grand jury indicted Aponte last month on four charges. He has pleaded not guilty. He resigned from his position as president of the City Council but remains a member of the council.

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Dan McGowan ( dmcgowan@wpri.com ) covers politics, education and the city of Providence for WPRI.com. Follow him on Facebook and Twitter: @danmcgowan