53 RI Bar J., No. 2, Article 1 (September, 2004). Article VI, Section 4: A Case Study in Constitutional Obsolescence.

• Author: Patrick T. Conley, J.D., Ph.D.

Rhode Island Bar Journal

Volume 53.

53 RI Bar J., No. 2, Article 1 (September, 2004).

Article VI, Section 4: A Case Study in Constitutional Obsolescence

Article VI, Section 4: A Case Study in Constitutional ObsolescencePatrick T. Conley, J.D., Ph.D.Patrick T. Conley practices law in East Providence, RI.On October 20, 2003, the Rhode Island group Operation Clean Government, filed an ethics complaint against House Majority Leader Gordon Fox alleging a conflict of interest. Fox, an attorney, was affiliated with a law firm that represented lottery company GTECH in the company's negotiations with the City of Providence for tax relief in exchange for GTECH's move to a parcel in the Capital Center. At the General Assembly session of April 30, 2003, Fox spoke in favor of an accommodation between GTECH and the Rhode Island Lottery Commission and voted to ratify the deal his law firm had helped to arrange.

Operation Clean Government made two basic demands in response to this scenario. The first was that the Ethics Commission sanction Fox for conflict of interest. Eventually, Fox reached a settlement with the commission whereby he paid a civil penalty of $10,000 in exchange for a finding that he "knew or should have known" of the legal business relationship between his firm and GTECH but "did not willfully and knowingly take any action that was a conflict of interest."

The second demand was more draconian. The complainants alleged that Fox must forfeit his seat in the House of Representatives because his actions constituted a violation of Article VI, Section 4 of the Rhode Island Constitution.

On November 6, 2003, House Speaker William J. Murphy sent me a letter requesting an advisory opinion to resolve the question of whether or not the alleged conduct of Fox fell within the purview of Article VI, Section 4. I volunteered my answer as an historian of the Rhode Island Constitution, mindful of the fact that our Supreme Court is the official formulator of such opinions under Article X, Section 3.

I prefaced my historical and legal analysis by stating that it neither addressed nor assessed the ethical dimension of the controversy. Such matters were solely within the jurisdiction of the Ethics Commission and the House of Representatives itself. The following is the text of my opinion.

. . . . . . . . . . . . . . . . . .The constitutional provision cited by the critics of Representative Fox - Article VI, Section 4 - reads as follows:No member of the general assembly shall take any fee, or be of counsel in any case pending before either house of the general assembly, under penalty of forfeiture of seat, upon proof thereof to the satisfaction of the house in which the member sits.The critical aspect of this section, as it pertains to the complaint against Mr. Fox, is the word "case" and its constitutional meaning. I maintain that our constitutional drafters used this word in its plain, common, and ordinary legal meaning. Case is defined by Black's Law Dictionary as follows:Case. A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. A judicial proceeding for the determination of a controversy between parties...