Separation of Powers (SOP)

Slide Show Overview by Phil West

Common Cause was among the first to identify the problem created by legislators sitting on the dozens of boards and commissions in Rhode Island. This dual office holding created numerous conflicts of interest and defied the basic model of government adopted by our federal government and the other 49 states. Putting separation of powers in our state constitution became our goal in the 1990s and Cause Rhode Island’s members were a crucial part of the historic 2004 vote which amended the state constitution in four critical ways:

  • It declared the three branches of state government separate and distinct (RI Const.Art. V);
  • It barred legislators from sitting on or appointing others to boards with executive powers (RI Const. Art. III § 6);
  • It repealed the so-called plenary powers clause, which, according to a 2000 Rhode Island Supreme Court ruling, allowed the General Assembly to exercise any power whatever unless the state constitution expressly forbade the practice (formerly RI Const. Art. VI § 10);
  • It vested the appointment of members of executive boards in the governor, subject to Senate confirmation. This part of the amendment also allows the General Assembly to vest certain appointments, by law, with department heads and general officers within their respective departments (RI Const. Art. IX § 5).

For Separation of Powers to be fully implemented after the 2004 vote it took many, many changes to state boards and commissions by the General Assembly.  The bulk of that was accomplished during 2005-2006 thanks in large part to the efforts of several influential lawmakers such as former Senator Michael Lenihan.

However, the legislature dragged its feet on several important boards, including the Coastal Resource Management Council (CRMC) and the I-195 Commission.  In 2008 the Supreme Court gave the governor the go-ahead to place people on the CRMC even if the General Assembly continued to be deadlocked on fixing the Council.  In the waning days of his time in office, Governor Carcieri tried to do this but the state Senate failed to act on approving his nominees.  And meanwhile, the I-195 Redevelopment Board remained largely defunct.  

In 2011, these, and other Separation of Powers issues finally came to a head.  In each instance the will of the voters was heard and SOP prevailed.  In the case of the Coastal Resource Management Council, Governor Chafee made three new appointments that saved the CRMC from the chronic meeting quorum problems and fulfilled the mandate of the Supreme Court opinion.  With the Senate’s confirmation of those appointees, the CRMC was put back on the right foot and the new constitutional order was further cemented in Rhode Island law.

The defunct I-195 Redevelopment Board came to the forefront that same month when Senate Majority Leader Dominick Ruggerio proposed creating an even more powerful body to oversee development of the land opened up by the movement of the old highway.  The initial version of the new commission proposed to give the ability to appoint some of the members of the very powerful commission to someone other than the governor, a clear violation of Article IX, Section 5 of the Rhode Island Constitution as amended in 2004.  Common Cause spoke up immediately to ensure that the will of the voters was heard and that the commission be made to comply with Separation of Powers.

In two other instances legislative attempts to thwart Separation of Powers were quietly defeated and the new order of Rhode Island government was upheld.  The first instance involved a bill to restructure appointments to the Airport Corporation.  Governor Carcieri vetoed the bill in 2010 because it violated SOP.  Like the I-195 bill, this legislation was amended in 2011 at the request of Common Cause to bring it into compliance with SOP and has now become law.

Finally, there is case of the Public School Employees Uniform Benefit Act.  This law gave executive authority to a twelve member state board to determine health benefits for all public school employees in Rhode Island.  This legislation, passed originally (over Governor Carcieri’s veto) in 2010, was a gross violation of Separation of Powers.  The governor appointed none of the twelve members of the board created by the act.  In fact, the governor was not even mentioned in the statute!  The unconstitutional nature of this board was brought to light with the help of Providence Journal editorial writer Edward Achorn who wrote about it in his February 8, 2011 column titled, “It’s time for Chafee to defend the R.I. Constitution.”  Again, quietly, in 2011 the legislature amended the board to make its recommendations purely advisory, therefore bringing it into compliance with SOP.  

These four cases, when viewed together, demonstrate how Rhode Island continues to struggle to implement the 2004 Separation of Powers amendments. Even after voters’ overwhelming 2004 approval of the Separation of Powers (SOP)  amendment to the Rhode Island Constitution and the unanimous 2008 Rhode Island Supreme Court advisory opinion, the fight for full implementation of SOP continues to this day.  Common Cause has gone to court to prevent the General Assembly from reestablishing its power over the Coastal Resource Management Council, and we we’ve won.  Ten years later the work of separation of powers continues.  Every legislative session numerous bills are introduced that would violate our new constitutional order.  Fortunately, Common Cause is committed to our role as a government watchdog in this area.

Posted in ISSUES