UPDATE: Judge Fortunato Rules in Favor of the Beacon Board Labor Reps
As I mentioned earlier, Beacon Board members George Nee and Henry Boeniger are trying to prevent Governor Carcieri from removing them from the board. As luck would have it for Nee and Boeniger, their appeal is being heard by pro-labor (according to Dan Yorke, though Andrew would characterize him as a bit more radical) Judge Stephen Fortunato. The ruling should come down soon. Stay tuned.
MORE: Dan Yorke was there and thinks that Judge Fortunato is going to rule in favor of Nee and Boeniger because the Governor’s lawyers “got boxed” by that of Nee and Boeniger and because of some statements made by the Judge.
Yorke quoted Fortunato, who said “we cannot ignore as judges what we know to be true as men” and that he point was clear that this case has a legal and political dimension. In short, it was is a legal mess.
According to Yorke, Judge Fortunato–who Yorke also said admitted he didn’t know much about the case (!)–seems inclined to support the idea of a hearing for Nee and Boeniger to better explain why they were being removed. However, he doesn’t think that the Governor can give them a fair hearing because he seems to believe that the Governor is already predisposed against Nee and Boeniger.
The Governor’s lawyers said that no such predisposition existed, but according to Yorke they missed their chance with that line of defense because they should have asserted that the Governor has the statutory rights as the Executive to remove them for cause: no hearing was necessary.
VERDICT: According to WPRO (here’s a link to the ProJo report), Judge Fortunato issued a 30 minute decision granting a temporary restraining order until a hearing was held in his court next Friday. He said the Governor was acting as the investigator, prosecuter and “judge” all rolled into one and that the Governor couldn’t be impartial. He suggested the go to arbitration. The hearing next week will be to determine whether to issue a permanent injuction.
Dan Yorke offered that Judge Fortunato is either way over his head on this one or acting too ideologically. Yorke also said that Fortunato’s characterization of the Governor’s action indicates that the Judge just didn’t get the conclusions of Beacon’s own internal audit. I would add that he doesn’t appear to understand the proper function of the executive in government. (This isn’t the first time I’ve taken issue with Judge Fortunato, incidentally). Yorke later pointed out that instead of relying on a Constitutional reading of the role of the Executive and the Beacon by-laws, the Judge basically fell back on his ideology.
FINAL UPDATE: This morning’s ProJo has more, especially with regard to Judge Fortunato’s thinking:
Among the issues raised at the hearing was the legal rights of Beacon’s board members considering the company’s unique status as a nonprofit mutual created by the legislature.
“The question is, what is the status of this company?” Fortunato said.
It appears, he said, that Beacon is “in a class by itself.”
“The governor, by statute and by the [company] bylaws, is involved in ultimate control of this company,” Fortunato said, “at least in his power to remove board members, at least for cause.”
Four of Beacon’s seven board members are gubernatorial appointments.
Fortunato said, however, that Governor Carcieri’s general charges that the board either engaged in misconduct or was negligent are not specific enough to justify removing Nee and Boeniger from the board.
“I’m not saying whether there has or has not been some dereliction of duty at Beacon,” Fortunato said, “but it must be determined by an impartial fact-finder, and the governor does not fit into that category.”
Our system “doesn’t allow someone to function as investigator, prosecutor and judge,” he continued, “and that’s what the governor has done here.”
Hodgkin, the governor’s executive counsel, said, “that assumes that an evidentiary hearing is required.” Hodgkin argued that the board members are not state employees and therefore are not entitled to an evidentiary hearing.
“The plaintiffs have no contractual rights with their position,” added Carlotti, the governor’s co-counsel.
Fortunato, however, asserted the two men’s right to a hearing with an impartial hearing officer, saying that even if the bylaws grant the governor the authority to remove board members, “he cannot do so arbitrarily or capriciously for any reason. He must do so for cause.”
Again, I would think that the results of the internal audit would be “cause” enough.
More proof that Beacon Mutual is a proxy for everything wrong in this state.