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RI Supreme Court justice wins appeal of $200 ethics violation

Target 12

PROVIDENCE, R.I. (WPRI) – With R.I. Supreme Court Justice Francis Flaherty winning a key victory in his yearslong fight against an ethics complaint, the state’s high court could soon find itself in the unusual position of hearing a case involving one of its own.

R.I. Superior Court Judge Brian Stern on Friday reversed a R.I. Ethics Commission decision from last year that cited Flaherty for violating the state’s ethics code. The violation, which came with a $200 fine, stemmed from a 2016 complaint accusing Flaherty of repeatedly failing to disclose his leadership position in a Catholic nonprofit while also ruling on a priest sexual abuse case.

Stern vacated that decision, however, concluding in part the commission had failed to prove Flaherty made a “knowing and willful” violation, meaning commission lawyers didn’t show Flaherty intentionally withheld the information.

“The Commission decision failed to make any findings that [Flaherty’s] actions were deliberate,” Stern wrote in his decision.  

Flaherty, who appealed the commission’s decision to the Superior Court last year, said through a spokesperson, “The decision speaks for itself.”

Ethics Commission attorney and executive director Jason Garmitt did not immediately respond to a request for comment.

The commission must now decide whether to appeal Stern’s decision, and its members have scheduled a meeting Wednesday to consider the matter. If appealed, the case would go to the Supreme Court – where Flaherty is a member – which would have to agree to hearing it.

And while Flaherty would most likely have to recuse himself, the idea of his colleagues ruling on a case involving one of their own could open the court up to criticism, according former Supreme Court Justice Robert Flanders Jr.

“Any such case always opens the court to criticism, but that comes with the job,” said Flanders, who served from 1996 to 2004. “It’s inevitable that these cases will be criticized, but as in most situations if you just do your job and do it the right way, you’ll survive the criticism.”

The situation would be unusual, but not without precedent. In 2005, the Supreme Court quashed a decision of the Superior Court and dismissed a complaint against former Chief Justice Frank Williams. The plaintiff at the time argued Williams effectively vacated his position as chief justice when he accepted another job with the U.S. Department of Defense’s Military Review Panel.

Williams did not participate in the proceedings and has since retired.

With the Flaherty case, however, it’s possible he wouldn’t be the only one missing from the process. The five-member court currently has a vacancy, as Associate Justice Gilbert Indeglia retired earlier this year. And while state leaders are vetting candidates for the highly sought-after appointment, the Flaherty case could come before just three justices, including Chief Justice Paul Suttell and associate justices Maureen McKenna Goldberg and William Robinson.  

“Three justices are enough,” said R.I. Courts spokesperson Craig Berke, who also noted that the court can call back ex-justices to serve on certain matters, if necessary.

Regardless of what happens next, the Supreme Court decision to overturn the ethics violation came as a disappointment to Helen McGonigle Hyde, an attorney and one of the plaintiffs in the sexual abuse case that alleged rape at the hands of Rev. Brendan Smyth, who served in the Roman Catholic Diocese of Providence as a priest more than 40 years ago.

Flaherty penned a unanimous Supreme Court decision ruling against the lawsuit, which was thrown out in part because the accusations exceeded the statute of limitations. Flaherty was president of the St. Thomas Moore Society at the time.

Hyde, who now lives in Colorado, filed the ethics complaint against Flaherty in 2016 for failing to list his position with the Catholic nonprofit on financial filings he is required to file with the Ethics Commission.

“He can’t credibly claim that this was an innocent mistake,” Hyde told Target 12. “He should’ve known this is something that he should’ve been disclosing, especially while sitting on church cases.”

Eli Sherman (esherman@wpri.com) is a Target 12 investigative reporter for WPRI 12. Follow him on Twitter and on Facebook.

Send tips to Target 12 Investigator Walt Buteau at wbuteau@wpri.com and follow him on Twitter @wbuteau.

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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