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C. Eugene Emery Jr.
By C. Eugene Emery Jr. September 10, 2010

Kilmartin says Fernandez didn't prosecute mayor's brother for writing bad checks to Providence

Democratic Attorney General candidate Peter Kilmartin came out swinging against primary opponent Joseph Fernandez last week, accusing the former Providence city solicitor of not having the courage to prosecute John Cicilline, Mayor David Cicilline's brother, after John wrote two bad checks to the city.

"When the mayor of Providence's brother wrote over 100 grand in bad checks to the city, Joe Fernandez didn't have the guts to prosecute him. He let him off the hook," the Kilmartin campaign ad says.

The facts of this case have been widely reported but the story broke two years ago. So let's review.

In the spring of 2006, Providence was trying to collect back taxes from Felix Nelson Garcia for his storefront property on Cranston Street. John Cicilline, Garcia's lawyer, wrote a $75,000 check on his law office account to the city tax collector's office, to be used as collateral. Garcia was to pay the tax bill once he refinanced the property. To allow the refinancing to happen, the city lifted a lien on the property.

When that check expired, Cicilline wrote a replacement check on the same account, which apparently never had sufficient funds to cash it. Cicilline maintained that the city knew that the money wasn't there. City officials said they agreed to the deal because Cicilline was a well-regarded criminal lawyer who was unlikely to jeopardize that distinction or do anything to embarrass his brother.

(Cicilline was subsequently sentenced to 18 months in federal prison after pleading guilty in June 2008 to shaking down drug-dealer clients. He is now disbarred.)

The check was never cashed and the property changed hands without the city getting its money. The incident led to the firing of Tax Collector Robert P. Ceprano. reported the news of the bad check on Sept. 18, 2008. By then, Garcia's bill, with interest, had grown to $132,000.

Five days later, Providence Police Chief Dean M. Esserman asked the state police to investigate. They spent nearly nine months on the probe, before sending the case to Attorney General Patrick Lynch. Two months later, Lynch's office decided against criminal prosecution.

Now back to the campaign ad.

During all of this, Fernandez, as city solicitor, was Providence's top lawyer. Neither Fernandez nor his office prosecuted the case. Kilmartin says Fernandez should have done that, implying that he didn't because John Cicilline is the mayor's brother.

The Kilmartin ad leaves out a lot of important information.

It is true that Cicilline wrote two bad checks totaling "over" $100,000. The actual total was $150,000.

But the second $75,000 check was a replacement for the first check, which had  expired. Cicilline never owed the city "over $100,000," as the ad implies. As a result, the phrasing of the Kilmartin ad is technically true but grossly misleading.

Second, and perhaps more important, state law prohibits any city or town solicitor from prosecuting a felony. That authority rests with the attorney general, who declined to take action after an independent investigation by state police.

Robert Craven, a lawyer for the Kilmartin campaign and former state prosecutor, argued that Fernandez should have repackaged the case as a misdemeanor charge or filed a civil suit against Cicilline to get the money. (That wouldn't actually be a prosecution. Only crimes are prosecuted; civil cases are litigated.)

The Fernandez campaign said that, by that time, the city solicitor's office had a conflict of interest because Ceprano (the fired tax collector who had been represented by Fernandez's office) had sued the city for wrongful discharge. To avoid the conflict, Fernandez hired Deming E. Sherman, of Edwards Angell Palmer & Dodge, to pursue a civil lawsuit to recover the unpaid taxes.

David M. Zlotnick, professor of law at Roger Williams University School of Law, said Fernandez's sending the case to a private lawyer seems more than reasonable. "If you refer the case to outside counsel, then the suit is going to get pursued." In a later e-mail he said, "There seems to be no effort to sweep this under the rug or avoid tackling a serious matter."

Sherman says Fernandez instructed him about a year ago to explore potential civil action against Scott L. Hammer, the private attorney who dealt with the Garcia account on the city's behalf.

The campaign provided us with an April 21, 2009 letter from Sherman acknowledging that he would represent the city "in connection with potential litigation against Scott L. Hammer and John M. Cicilline..."

Sherman said he has been actively pursuing a case against Hammer and depositions are still being taken. He would not say whether any action was planned against Cicilline, who has since been released from prison.

And, for the record, the Kilmartin ad says, in big letters, "Joe Fernandez failed to prosecute corruption - Providence Journal 4/1/09." The Journal's story that day, headlined "Deadline near for suit in Providence tax case," says no such thing.

To sum it up:
* Kilmartin's ad cites a dollar amount that is misleading.
* He attacks Fernandez for not bringing criminal charges, when Fernandez, by law, had no authority to do so.
* He faults him for not bringing a civil case, when Fernandez, for ethics reasons, turned the case over to a private lawyer to pursue potential civil action.

His allegations against Fernandez fall into the realm of ridiculous, and we give him a Pants On Fire!

Featured Fact-check

Our Sources, "Kilmartin's Second Commercial," accessed Sept. 2, 2010, "Probe finds no crime in Providence tax office case," Aug. 7, 2009, accessed Sept. 2, 2010, "Deadline near for suit in Providence tax case," April 1, 2009, accessed Sept. 2, 2010

Interview and e-mail, Brett Broesder, manager - communications, research and public affairs, Peter F. Kilmartin for Rhode Island Attorney General, Sept. 2, 2010

Interviews and e-mails, Dan Herkert, campaign manager, Joe Fernandez for Attorney General, Sept. 2 and 9, 2010

Interviews, Robert E. Craven, lawyer for the Kilmartin campaign, Sept. 2 and 9, 2010

Report, KPMG LLP, "City of Providence Investigation Summary," Jan. 20, 2009

Letter, "Re: Certain Tax Collection Matters," Joseph M. Fernandez, city solicitor, March 31, 2009

Interview, David M. Zlotnick, professor of law at Roger Williams University School of Law, Sept. 9, 2010

Interview, Deming E. Sherman, Edwards Angell Palmer & Dodge, Sept. 9, 2010

Interview, Adrienne G. Southgate, Providence city solicitor, Sept. 9, 2010

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Kilmartin says Fernandez didn't prosecute mayor's brother for writing bad checks to Providence

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