The American Civil Liberties Union of Rhode Island (RI ACLU) wrote a letter to Cranston City Council, but historians won’t find it included in the official record of last week’s meeting.

Cranston City Council’s Democratic majority followed President Jessica M. Marino’s lead, voting 6-3 along party lines, against entering the correspondence into the record.

The Record

“I respect the ACLU as an organization,” Marino announced, moments before telling the city clerk to call the roll. “There is a pending investigation as we sit here. The ACLU does not have all the facts. Their letter says, under the facts known to them, which is through media reports. Their letter is speculative. It is presumptuous. And therefore, it is conjecture. It is for those reasons that this letter should not be accepted into the record.”

The letter questioned Marino’s alleged behavior prior to the resignation of now former City Council Member Aniece Germain, who contacted the ACLU, seeking the organization’s “views on the events that have recently transpired leading to her resignation from the Council.”

“It was very disappointing to see the City Council essentially pretend that this troubling event didn’t even happen by refusing to place the ACLU’s letter in the record,” said Steven Brown, ACLU of Rhode Island Executive Director.

“The fact that nobody at the meeting was able to satisfactorily answer the question at the heart of Ms. Germain’s resignation and complaint — what constitutes ‘official conduct’ that can prompt a Council investigation — makes this action particularly troubling.”

Last Tuesday night, Marino once again publicly accused Germain of seeking donations for her formerly-nonprofit organization, Hope and Change for Haiti. She referenced a 2022 email from the fellow Democrat.

“Facts do matter,” Marino said, using her “signature phrase” (Marino often repeats the phrase to accentuate certain aspects of council proceedings, usually in response to arguments with which she disagrees). “The pending investigation will play itself out … that’s the proper forum for that.”

Marino referenced an alleged pending Rhode Island State Police (RISP) investigation into her actions. Germain accuses the council president of making the threats as part of a conspiracy to vacate her council seat.

Just the Facts

“One fact, one fact, that does matter, is that on Nov. 30, 2022, Councilwoman Germain, as Councilwoman Germain, sent an email to Cranston residents, constituents, some council people, asking, promoting and accepting donations, both monetary and in the form of goods, for Hope and Change for Haiti, while she was also the executive director,” Marino said from her elevated seat in City Council chambers. “While at the same time, at a minimum … it’s status as a 501C3 tax-deductible nonprofit had lapsed.”

Attorney Stephen Angell, City Council’s legal counsel, also referenced the RISP investigation at last week’s meeting.

“Whatever one thinks about the series of events involving Ms. Germain, the Council’s refusal to come to terms with it in any meaningful way sets an unfortunate precedent that will allow for political mischief down the road,” Brown warned. “It is not a step forward for government transparency.”

The RI ACLU was represented at last week’s council meeting by Cranston resident Heather Burbach, a former RI ACLU chair and current member of the organization’s Board of Directors.

“Because we believe she has raised legitimate concerns, I am writing to request that the Council take steps to ensure that no similar incident arises in the future,” Brown wrote to Cranston City Council. “Let me begin by emphasizing what this letter is not about. We have no inside information on the personal conversations that took place between Ms. Germain, Council President Marino and others, and offer no views on what was or was not said during those conversations. Instead, our concerns arise solely from the publicly available information of the events leading to Ms. Germain’s resignation.”

Germain says she quit the council because Marino threatened a public investigation of the former councilwoman’s Haitian support charity.

“Nor do we purport to rely on any extenuating or aggravating circumstances surrounding the revocation of the tax-exempt status of the private organization that Ms. Germain leads, which is what led to this controversy,” Brown’s letter continued. “At least for now, that is a matter for the organization and the IRS. But whatever the ultimate ramifications of that lapse in status, the threat of a city council investigation into Ms. Germain’s conduct based on what is presently known was clearly inappropriate.”

The Vote

“The ACLU letter is conjecture and I am inclined not to introduce into the record for that reason. Facts do matter,” Marino said. “At this time, clerk, please take the roll.”

Marino joined fellow Democrats Citywide Councilman Robert J. Ferri (the Democratic candidate for mayor), Council Vice President Lammis J. Vargas (Ward 1), Majority Leader John P. Donegan (Ward 3), Daniel Wall (Ward 6), and Germain’s replacement on city council, Kristen E. Haroian (Ward 2), voting to keep the letter out of the record.

Republican council members Richard D. Campopiano (Ward 4), Christopher G. Paplauskas (Ward 5) and citywide representative and Minority Leader Nicole Renzulli, voted to enter the RI ACLU letter into the record, but ultimately lost 6-3.

The ACLU letter, dated April 30, was mailed to all the members of Cranston City Council, as well as Germain, Cranston Mayor Kenneth Hopkins, City Solicitor Christopher Millea, Rhode Island Attorney General Peter Neronha and RISP Col. Darnell Weaver.

“Our major concern involves President Marino’s stated belief that she had a ‘public duty’ to take action, in the form of a Council investigation of Ms. Germain,” Brown wrote.

Define ‘Official Conduct’

Earlier in the meeting, Renzulli had tried but only somewhat succeeded to gain legal opinions from the city’s lawyers in attendance.

She sparred with Angell over the definition “official conduct,” and sought an explanation of city council’s “investigatory powers and what actually constitutes official conduct of someone on city council.”

“What do you consider official conduct?” Renzulli asked Angell.

He responded, that “to a large degree” the words “official conduct” are “a term of art,” and its meaning is ultimately left to the deciding body — in this case, city council.

“You think the body should decide?” Renzulli asked Angell.

“No one person on this council can start an investigation,” he replied.

“No one person on this council has the duty to investigate?” Renzulli asked.

“I didn’t say ‘duty’ — I said ‘has the authority,’” Angell snapped back. He clarified that “council would vote to investigate or not.”

Angell said that “official conduct” was “to be interpreted by the body investigating the conduct.”

Renzulli wanted to know if the private lives of the members of city council were open to public session examination by fellow city council members. Angell said that was a “law school question” that “would take weeks” to answer via lecture.

“So the charter is allowing us to decide what our official conduct is?” Renzulli asked to follow-up. “There’s no legal definition of official conduct for a public official? It doesn’t have to do with our jobs as public officials?”

Angell referred briefly to the “Code of Ethics, that has been adopted in the city of Cranston, which does talk about the appearance of impropriety and things of that nature.” According to the attorney, Cranston City Council also adopted the state’s “Code of Ethics in the state constitution.”

Renzulli asked Angell if he was “the attorney that advised the Council President” in the Germain matter.

“I’m the attorney that advises all nine people in this room,” Angell answered. “To whom I advise, and what advice I may give them, is governed by the rules of professional conduct, as dictated by the state of Rhode Island Supreme Court. That’s my answer to your question.”

Angell then named each member of city council, for effect.

Renzulli continued her line of questioning, asking Angell “what advice” he potentially gave the council president.

He invoked his legal obligations to preserve attorney-client confidentiality.

“I have no idea what people did to act on this particular issue,” Angell insisted. “How would I know that? How would I know what phone calls have been made, what emails have been sent? I have not the foggiest clue.”

“I was just asking …” Renzulli started to say, but was interrupted by Angell.

“I’m a practicing lawyer subject to the rules of professional conduct,” he said from the lectern at the front of council chambers. “I do not disclose the advice I give to individuals. Nor am I in a position to disclose the names of the individuals to whom I give that advice, unless those individuals make themselves known to the public.”

After a couple more follow-ups, Angell (pronounced “Angel”) stopped hiding his distaste for Renzulli’s line of questioning.

“I think the answer is to move on,” he offered the councilwoman. “Ok. I’ll do the best I can for the fifth time … The terms ‘official conduct’ are a term of art to be interpreted by the body, this body that would necessarily conduct the investigation. It means what it means … that’s my answer.”

“In this situation, involving councilwoman Germain, in regards to her nonprofit, and their tax situation, would you say that that was part of her official conduct as a city council member here in Cranston?” Renzulli asked anyway.

“I can’t give you an opinion on that,” Angell said. “And it’s a moot point … This is an ongoing investigation with the state police.”

Second Opinion

Renzulli was responsible for placing the ACLU letter on the evening’s agenda. She asked her fellow councilors to examine the “scope and authority of council investigations.”

“The ACLU has raised substantial concerns regarding the events leading to Ms. Germain’s resignation, particularly the appropriateness and authority of a Council investigation into her private organizational affairs,” Renzulli was quoted in the meeting agenda.

Renzulli referred to Section 3.17 of the City Charter, which she says grants city council “the authority to investigate the ‘official conduct’ of any city department, board, commission, office, agency, officer, or employee.”

“We need to establish a clear understanding of what constitutes ‘official conduct’ and ensure that investigatory actions are confined to this scope,” Renzulli wrote before the meeting. “The ACLU contends that considering an investigation in the case of former Councilwoman Germain overstepped the bounds of Council authority, as the issues with her non-profit’s tax-exempt status were unrelated to her official duties as a council member. We should also discuss the premise that any one council member has the authority to ‘take action’ in the form of an investigation, as well as address potential overreach and the misuse of investigatory powers.”

After refusing to give his legal opinion on the Germain case, and whether the allegations against her fell within the realm of “official conduct,” Angell told Renzulli she was free to ask the other lawyers in the room.

Millea took the lectern next. He gave a somewhat less evasive interpretation, agreeing to tackle the question in “general terms.”

“I may differ from the opinion given by Mr. Angell,” he told the crowd. “I believe that ‘official conduct’ would deal with the official conduct of someone as an employee of the city; as each nine people, nine individuals sitting there are employees of the city. As am I … That’s what I would consider ‘official conduct.’ That’s my legal opinion.”

Dangerous Precedent?

The ACLU warned Cranston City Council that the situation surrounding Germain could have serious repercussions.

“We do not know whether Ms. Marino’s view that this information was sufficient to trigger the Council’s investigatory powers reflects the view of other Council members,” Brown wrote. “We are writing to request the Council to make clear that it does not. That is because this position is extraordinarily problematic. The Council simply had, and has, no authority to engage in such an investigation under these facts.”

According to the ACLU, “there have been absolutely no allegations that any tax exemption problems that may exist with Hope and Change for Haiti were in any way related to Ms. Germain’s official duties as a city councilor, and therefore any investigation would have had nothing to do with her ‘official conduct.’”

“Indeed, it would be deeply disconcerting if the Council felt it had the authority to act as a roving commission to examine any allegations of ‘unethical conduct’ of its fellow members, board appointees or city employees that was unrelated to their official work for the city,” Brown wrote. “An investigation in this instance would have enmeshed the Council in potentially using its official subpoena powers to seek private information completely unrelated to city governance, setting an extremely damaging example. It would also have involved the Council in weighing the intricacies of federal tax law, something we would argue falls even further outside its authority, much less expertise.”

To end her line of questioning, Renzulli expressed frustration with the process so far.

“I really don’t understand why no one cares, but this potentially affects all of us, any person who’s ever elected here, every employee of the city of Cranston,” Renzulli said. “I can’t think that unions think that their employees could be investigated by us based on something they do outside their capacity as laborers. I don’t think that someone who is a member of a social club that has something questionable going on expects that the city council could perhaps bring them in to investigate them. So, I think that that’s a point that we need to discuss.”

After asking over and over again, Renzulli offered her own definition for “official conduct.”

“I think it’s pretty basic,” she said. “I think anyone who can read knows what official conduct means. Whether they want to say it out loud or not, we know what our official capacity is.”

The ACLU also warned that “making use of the City Council’s investigatory powers over private conduct is especially troubling when aimed at fellow council members, regardless of the intent, in light of the inherent political implications and consequences of such an investigation.”

“We have no reason to wade into the dispute of whether, as Ms. Germain alleges and Ms. Marino denies, there were political reasons behind Ms. Marino warning her that she would be the subject of an investigation, but the controversy acutely demonstrates the dangers in perception that are bound to arise when the Council wields an investigatory club against fellow council members for non-official conduct,” Brown wrote. “According to Ms. Germain, she resigned her position because she did not want her private organizational difficulties to be the subject of a public investigation by the Council she sat on. She had a right not to expect that.”