Let’s pause for a moment and appreciate, with grateful awe, that the topic of the day has apparently been the fine legal detail of government appointments and the state code of ethics.  Philosophers of citizen-government are surely looking down on us from on high as if the specter of their ideal just flitted by in their peripheral vision. To whatever extent my post on Saturday contributed to that Taste of How It Should Be, I consider myself well recompensed.

It’s possible I’ve missed it, in the past, but this article from the Providence Journal’s Katherine Gregg has a refreshingly unique feel to it:

The Ethics Commission can grant a waiver, but only in cases where “denial of such employment or position would create a substantial hardship.”

It remains unclear what arguments Mancuso will raise, to make her own case for an exception. Some have succeeded; others not. Here’s a look at two cases.

Rather than beginning with those two samplings, I’d advise readers to begin with the excitingly named Advisory Opinion No. 2012-31, because that is the most recent case involving the particular regulation in question.  As such, it has a pretty thorough historical review of the Ethics Commission’s past actions.

The critical question, when it comes to whether the Chairwoman of the Board of Education can be appointed by her board to a well-paying job as Commissioner of Higher Education, is whether the Ethics Commission can reasonably find that it would impose a hardship on the Board not to appoint Chairwoman Mancuso.  In all of the precedent reviewed in AO2012-31 allowing such a finding, the most common consideration is that the government body conducted a search for other candidates and received no qualified applicants.

The hardship, in that case, is that a standard employment search or request for proposals left no options, requiring time and money that the board does not have, if it cannot pick the obvious choice from among its own ranks.

As I described earlier today, that does not seem to apply in the case of Mancuso, inasmuch as no job search appears to have been conducted, and the board has apparently had a suitable arrangement by paying a college president $85,000 extra to take on some of the tasks while the chairwoman of the board supplemented the effort.  Instead, it looks like the Board of Education decided Thursday that it should have a full-time, dedicated Commissioner of Higher Education, and Democrat Governor Lincoln Chafee decided Friday that he should recommend Mancuso, to be voted on Monday and in office by Tuesday.

The main exception to the Ethics Commission’s precedent, as Gregg highlights, is Advisory Opinion No. 95-118.  For the uninitiated, it might be helpful for me to point out that the first number in that code is the year of the opinion, so this was the 118th opinion issued in 1995.  Having spent some hours discussing precedent with Ethics Commission lawyers on other matters, I can tell you that older precedent is considered to be less relevant to present questions.

In basic summary, that case had to do with a member of the Rhode Island Commission of Women who wanted to take the job of Interim Executive Director, “while the Commission interviews candidates to serve as the full-time, permanent Executive Director.”  The commission advised that she could do so, which would seem to be a hopeful indicator for Mancuso.

Applying this history to Mancuso, however, would represent an erosion of the state’s revolving door policy for a number of reasons.  First, of course, is that it would reinforce the precedent of the 1995 decision, creating a very low bar, indeed, for “hardship” exceptions.

Reviewing these AOs, one is periodically struck with the unavoidable conclusion that the Ethics Commission sometimes makes… well… imprudent decisions of convenience on individual cases, and then those decisions get baked into the evolving regulations, although the commission’s lawyers assure me that advisory opinions are not binding in any degree except for the individual person who was given specific advice.

Second, the differences between the Mancuso case and the case from the last millennium are multiple.  Here’s the reasoning from 95-118:

This conclusion is based on the Petitioner’s representations that a) the Commissioner is uniquely familiar with the issues affecting equity for women, the work of the Commission, and the Commission’s office procedures; b) the Commission has been without a full-time Executive Director for over six months; c) the Commissioner will resign from her position on the Commission; d) the Commissioner will serve as Interim Executive Director only until the Commission completes its search for a permanent replacement, a sixth month period; and e) the hiring process for the Executive Director will be an open and public process.

In this case, the state has lacked a full-time Commissioner of Higher-Education for some years, and it has implemented the $85,000 DiPasquale solution, which had appeared to be satisfactory until last Thursday.  Moreover, Mancuso expects this “interim” to be several times greater than the six months mentioned in 95-118.  And I don’t know what the pay for an interim director of the Commission of Women was in 1995, or how much real authority and power came with that title, but Mancuso stands to earn $200,000 annually in pretty high-profile government job.

There’s also the fact, of course, that Mancuso is not just any ol’ member of her board, but the chairwoman, which is a position, presumably, to which one of the people voting on her appointment will have opportunity to ascend.  By buying her off the board, in essence, the other members would free up her title.

That’s the case as I see it.  The most hopeful outcome, however, will be if the surprisingly high profile of this issue inspires Rhode Islanders (and members of the media) to begin to question whether commissions and codes — as compared with competitive voting contests and public accountability — are sufficient for a government that claims an ever-greater authority over our lives.