DiMasi asserts immunity in fight with ethics panel
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House Speaker Salvatore F. DiMasi is invoking a constitutional claim of legislative immunity in his refusal to cooperate with a State Ethics Commission demand for his records, according to lawmakers who have been briefed by DiMasi on his position.
DiMasi disclosed his legal strategy in a series of closed-door meetings yesterday with members of his House leadership team and committee leaders that was designed to shore up support in the chamber.
He used the meetings, said two lawmakers who attended, to explain his side of the dispute after the Globe reported this week that the speaker was refusing to cooperate with the Ethics Commission's conflict-of-interest investigation.
Lawyers representing the commission have filed suit in Suffolk Superior Court seeking a court order to force DiMasi to produce the records, setting up a high-level legal showdown. But the court filings are sealed and little is known about the legal arguments involved. DiMasi declined to comment yesterday.
The constitutional protections asserted by the speaker would apply to documents, including e-mail, that were used in any legislative deliberations by DiMasi, his colleagues, and his staff in developing the legislation that led to a key contract at the heart of the case, specialists said.
DiMasi and three of his close friends and associates are the subjects of the Ethics Commission probe and other investigations relating to large payments the associates received from
DiMasi is resisting a demand by the Ethics Commission for records and e-mails relating to passage of a 2007 bill that authorized money for $13 million to purchase Cognos software, the two lawmakers said. The lawmakers' account of the meetings was supported by several other Beacon Hill officials. All requested anonymity because of the private nature of the meetings.
According to legal specialists, DiMasi's assertion of legislative immunity is grounded in long-held constitutional law. But the specific immunity issues raised by DiMasi have not been tested in modern times, at least not in Massachusetts. In the last case in which the state Supreme Judicial Court considered the matter, it upheld the legislative protection. That was in 1808.
"It is designed to foster free and open debate," said Daniel B. Winslow, a former district court judge who served as legal counsel to Governor Mitt Romney. "The people's representatives must be free to perform the duties of their offices without fear of civil or criminal consequences."
Harvey Silverglate, one of Boston best known civil rights lawyer, said the concept behind the constitutional provision is deeply rooted in Anglo-Saxon law.
"This has been very well respected privilege for centuries," he said. "It dates back to the English common law days. These battles are not new."
Article 21 of the Massachusetts Constitution, which other state constitutions and the federal constitution copied, bars prosecutors or others from obtaining those sort of papers.
It states: "The freedom of deliberation, speech and debate, in either house of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever."
In the US Constitution, the clause is known as the "Speech or Debate Clause."
DiMasi is also telling colleagues that he is prevented by state law from publicly explaining his side in the ethics investigation. DiMasi cited the secrecy provisions Monday to deflect media questions.
"There is nothing I can tell you about whether there is or isn't anything before the Ethics Commission because of strict confidentiality, and I think everybody should abide by that," he said. "That's all I can say."
But that stance was contradicted yesterday by an official with the Ethics Commission. While ethics panel rules require strict secrecy over its proceedings and impose fines of $1,000 and up to a year in jail for violators, the subject of a complaint - in this case, DiMasi - is not covered by the confidentiality law, said a commission spokesman, David Giannotti.
DiMasi's resistance to the Ethics Commission demand, which has the same force of law as a subpoena, has shaken some of his support in the House, as members say privately that they are growing increasingly worried about the public's reaction, even to the point that some are worried about voting to reelect him speaker in January. His weakened position has also raised the tensions in the battle between a pair of his lieutenants who are jockeying to succeed him.
With the internal House politics roiling, DiMasi took the unusual step yesterday of holding a series of meetings with key lawmakers and other House supporters.
"He wanted to hear our thoughts about what has been made public and what the implications are for the reputation of the House," said Jay Kaufman, a Lexington Democrat and one of DiMasi's committee chairmen.
"There is frontal assault on his integrity," said Kaufman, a strong DiMasi supporter.
"I think the speaker recognizes there is a challenge for him to reestablish the collegiality and his authority as the speaker of the house."
