Differences of opinion, different accounts of a meeting that happened earlier this year and last-minute surprises best describe the path of legislation giving Warwick a voice on developments at T. F. Green Airport.

House bill 7069 introduced by Rep. Joseph McNamara and supported by Mayor Frank Picozzi, would restore the Warwick mayor’s appointing power to name one of the seven-member Rhode Island Airport Corporation’s (RIAC) board of directors.

The bill, introduced in January, recently had hearings before the House Corporations Committee and the Senate Judiciary Committee, but not without surprises in between. One of those surprises included a letter of opposition by Gov. Dan McKee’s office sent last Tuesday to the House Corporations Committee. This came as a surprise to Picozzi and McNamara because they said during a meeting with the governor in January McKee was supportive of the legislation.

“He was supportive of it,” Picozzi told the Beacon after the March 26 House hearing when asked how conversations with the governor went about this bill. “The representative went with me, we went to see Governor McKee and he was supportive of it.”

After the hearing, it was learned that McKee’s office and RIAC submitted letters of opposition to the bill, which was news to Picozzi and McNamara.

“They’ve had more than two months to come up with this and they did it in the eleventh hour, right before the committee meeting without even giving a heads up to me or the sponsor,” Picozzi said in a follow-up interview Friday.

Picozzi also emphasized the last-minute nature of these letters by pointing out that during the Senate’s hearing on March 28, which he attended to testify in favor of this bill, the committee wasn’t aware of a letter.

“Last night, the Senate – not only hadn’t Senator [Mark] McKenney or Senator [Matthew] LaMountain been informed, the entire committee wasn’t aware of the letter,” added Picozzi.

Around twelve and a half minutes into the Capitol TV broadcast of the Senate’s hearing, state senator Frank Lombardi asks Picozzi for a copy of the letter. A couple of minutes later, McKenney, who is a sponsor of companion legislation in the Senate, expressed disappointment with “the communication from the Governor’s office,” adding, “And it’s not the first time in recent days where I’ve been disappointed by communication from the Governor’s office. I would like to see – if they’re going to throw something like that in at the last minute, I would’ve expected somebody to be here to answer questions with respect to it.”

In yet another turn, McKee’s Press Secretary, Olivia DaRocha, said during that January meeting, “the Governor signaled his support for the concept of having a representative from Warwick on the Board — he continues to support that concept. No legislation was shared with the Governor during that initial meeting or before the legislation was filed.”

Picozzi remembers it differently, as he told the Beacon Tuesday, “It was very clear that we were discussing an appointment by the Mayor, not any other form of representation. I asked for three [appointments] and he said he was supportive of one appointment by the Mayor.”

As for the claims that no specific legislation was shared, but rather just the concept of Warwick having a voice on the board, Picozzi added, “There was no ambiguity in the conversation. We discussed that Joe McNamara had proposed the legislation years earlier and I had a copy of that document with me.”

Unconstitutional bill?

The letter, written by Executive Counsel Claire Richards, claimed that as written the bill’s current language is unconstitutional.

“Article 9, section 5 of the Rhode Island Constitution vests the Governor with the power to appoint all members of any board, commission, or quasi-public entity of the State that exercises executive power,”

Richards wrote. “The Act’s authorization of a direct municipal appointment vitiates the Governor’s power to appoint all the members of RIAC’s board, and therefore, violates the Constitution.”

McNamara disagrees with the interpretation, saying “the separation of powers amendment related to: The appointment of legislators or their designees, or appointments to a board with executive power. This is the appointment of an individual from a municipal executive branch, which is the Mayor’s office, who was duly elected, and represents the second or third largest city in the state, depending on where people are shopping or vacationing, it goes back and forth.”

The letter also suggests Warwick could still have a voice on this board and not be in violation of the separation of powers amendment.

“For example, the enabling legislation for the Rhode Island Resource Recovery Corporation (RIRRC) allows for the participation of the host community by requiring the Governor to appoint residents of Johnston to the RIRRC board with ‘due consideration to recommendations from the Mayor of the Town of Johnston and the League of Cities and Towns’,” the letter states.

Picozzi’s concern with that suggestion is that the governor could still pick whoever he wants from that municipality and it wouldn’t give “a voice to the local community,” adding, “They're choosing the voice, not us.”

McNamara’s issue with the example is that Warwick has a precedent since their mayor used to be able to appoint one member until a 2011 law was passed, granting the power to nominate all seven appointments to the governor.

“We have a history,” McNamara said. “This was a position that was taken away from us. The mayor had an appointment.”

Solicitor weighs in

Warwick’s City Solicitor Michael Ursillo, and Peter Skwirz, an attorney at Ursillo, Teitz & Ritch, Ltd. wrote a legal opinion that says the governor's legal counsel’s opinion about this bill being unconstitutional is incorrect. The opinion was sent to Picozzi and Aaron Mackisey, his chief of staff, on Monday.

“This provision was approved by Rhode Island voters in 2004 in the same package of constitutional amendments that created separation of powers provision of the state constitution,” the legal opinion states. “The intent of these separation of powers amendments is to prevent the General Assembly from interfering with the executive branch of state government, including eliminating the practice of the General Assembly directly appointing members of the executive branch. This underlying purpose is important to keep in mind when analyzing this issue, as it demonstrates that the underlying concern of Article XI, Section 5 is usurpation of gubernatorial power by the General Assembly. Appointments made by local elected officials to entities with an outsized impact on the locality was not the underlying concern of Art. IX, Sec. 5”

*Editor’s note: This section of the legal opinion is quoted directly, but reference to “Article XI” is likely meant to read “Article IX”.

Ursillo and Skwirz’s analysis also states Article IX, Section 5, “only applies to the appointment of ‘officers of the state’ or a ‘board, commission or other state or quasi-public entity which exercises executive power under the laws of this state.’ RIAC board members are not officers of the state and RIAC does not exercise executive power of the state government, so Article IX, Section 5 does not apply to RIAC whatsoever.”

Toward the end of the analysis, Ursillo and Skwirz provide examples where “The argument of the Governor’s legal counsel falls apart.”

They cite the Quonset Development Corporation (QDC), which Ursillo and Skwirz say “serves an analogous function to RIAC” and operates “state land that it acquired from the federal government in the area of the Quonset naval base.” They point out that the QDC’s board, alongside having six members appointed by the governor also has two members appointed by North Kingstown’s Town Council, one by Jamestown’s Town Council, and one by East Greenwich’s Town Council.

Another example provided by Ursillo and Skwirz is the East Providence Waterfront District (EPWD). They explain how the EPWD’s commission, since legislation passed in 2010, allows for five members to be appointed by East Providence’s city council, five by the governor, and the chairperson is jointly appointed by the mayor, with approval from the council, and the governor.

Their last example provided in the opinion points to how RIAC’s board had an appointee from Warwick’s mayor until 2011.

“Thus, for five years after the enactment of Article IX, Sec. 5 of the state constitution, the Mayor of Warwick continued to appoint a member to the RIAC board with no issues, and no one ever argued during that five-year period that it was a violation of Art. IX, Sec. 5, to do so,” Ursillo and Skwirz wrote. “That is because it plainly was not an issue.”

RIAC in ‘good shape’

RIAC’s letter differs from McKee’s, instead explaining the corporation is in good shape, thus not needing a change.

“Additionally, the financial condition of RIAC is quite possibly stronger than it has ever been,” the letter, written by John J. Goodman, assistant vice president, media and public relations, said. “We currently have a surplus of over $100 million and have received multiple credit agency upgrades. Beyond building a surplus we have also been able to lower our debt.”

The letter goes on to further praise RIAC’s current financial situation, saying, “RIAC currently has $950 million in infrastructure improvements in its master plan and is implementing $350 million of it over next two years.”

 RIAC notes that the board already has a Warwick member: John Justo.

“Their letter was a rah rah we’re doing great letter,” Picozzi said . “And we’re wonderful neighbors. And then they talked about a person on the board that’s from Warwick. I talked to the person once, three years ago, because he was on the sewer authority board. The representative doesn’t know who he is. That’s not a Warwick choice, it’s not representative of Warwick, we don’t even know who he is. RIAC sent that, saying, ‘Warwick doesn’t need any representation.’ See what I mean? Just that letter is evidence that we do. They don’t want us to have any representation.”

A no-brainer

“Michael D. Zarum, a Warwick resident who served on Rhode Island DEM/the City of Warwick's Air Quality Committee that studied the impact of hazardous air pollutants from T.F. Green and Warwick’s Legal Selection Committee for Aviation Counsel, and a Former Study Resource Committee (SRC Member) on Airport Master Plan, sees this bill as a no-brainer.”

“The City of Warwick is a major stakeholder,” Zarum said. “They deserve to have a seat at the table to listen to what’s being discussed and have a vote. And I think any legislative changes to bring that about should take place.”

Zarum also believes this bill would add an element of transparency to RIAC’s board, which he says the corporation doesn’t want.

“The bottom line here is they don’t want transparency,” Zarum said when reading RIAC’s letter of opposition to the bill. “And they're hiding behind all this other stuff.”

McNamara and Picozzi’s push for the bill stems from quality of life issues raised by airport neighbors.   Those concerns raised by the mayor consisted of high noise levels affecting the neighborhood where a cargo facility would be built south of the terminal and traffic that could back up into Warwick if delivery trucks were to use city roads.

Picozzi said these issues “are in the process of being resolved.”

He added “They resubmitted their plans to the FAA, we haven’t gotten that back yet and we’re still working on an MOU (Memorandum of Understanding) where they’ll agree to our concerns, and we should be close with that.”