Section 1: Scope and Purpose


Section 4 of Chapter 268B of the General Laws authorizes the State Ethics Commission to investigate violations of Chapters 268A and 268B. The Commission has adopted the following internal procedures to guide the Commission staff in fulfilling its responsibilities to inquire into violations of the Conflict of Interest and Financial Disclosure Laws, and to act as the primary civil enforcement agency under those laws. These procedures reflect the Commission's goal of insuring fairness in the investigation of allegations which may affect the rights and reputations of public employees.
 

Section 2: Complaint Intake and Staff Review


(A) Complaint Intake:


Any information in the nature of a complaint received by the Commission, other than a sworn complaint, which suggests a violation of Chapter 268A or 268B will be reviewed by the Enforcement Division. Complaints may also be generated by the Enforcement Division staff through their reviews of media reports and other information. The Enforcement Division may obtain follow-up information to clarify the nature of a complaint. Generally, matters within the Commission's G.L. c. 268A and 268B jurisdiction will be investigated provided they are deemed to involve relatively serious allegations.

The Enforcement Division may act in a matter without an investigation with the approval of the Enforcement Division Chief. The Enforcement Division may close a matter administratively or send a private educational letter to the subject stating the substance of the allegation, noting that no investigation has been done, and informing the subject of how G.L. c. 268A or c. 268B would apply if the allegation were true.


(B) Staff Review:


Any matter that is not concluded without an investigation will be opened and assigned for staff review and investigated to the extent deemed appropriate by the Enforcement Division Chief. At the end of a staff review, the Enforcement Division staff handling the matter will prepare a written report of its findings and recommendations for the Commission's review. The report will recommend that the matter be closed or investigated in a preliminary inquiry.

If the matter is closed after review of a closing memorandum by the Commission, the subject, if he has been contacted by the staff in its screening, will receive a letter indicating that based on its review the staff has decided to take no further action at this time. When appropriate, this letter will educate the subject regarding any G.L. c. 268A and/or G.L. c. 268B violations uncovered by the screening which do not merit further action by the Commission.


(C) Sworn Complaints:


A sworn complaint which alleges violations of G.L. c. 268A or 268B will be referred to the Enforcement Division for review and presentation to the Commission. A sworn complaint must be in writing, contain a particularized statement of facts upon which the complaint is based which, if true, would constitute such a violation, and be signed by the complainant under the pains and penalties of perjury.
 

Section 3: Initiation and Notice of a Preliminary Inquiry


(A) A preliminary inquiry will be initiated following the affirmative vote of three members of the Commission.

(B) The Legal Division Chief will notify the Department of the Attorney General in writing of the initiation of any preliminary inquiry, within five (5) working days of initiation.

(C) Within thirty (30) days of the commencement of the inquiry, the Legal Division Chief will notify any person who is the subject of a preliminary inquiry in writing of the existence of such inquiry and the general nature of the alleged violation, including the specific provisions of law which may have been violated.[1]   The notice will indicate that the subject of the inquiry has an opportunity to discuss the inquiry with, or submit any information to, the Enforcement Division.
 

Section 4: Conduct of a Preliminary Inquiry


(A) The purpose of a preliminary inquiry is to obtain sufficient evidence to determine whether there is reasonable cause to believe a violation of G.L. c. 268A or G.L. c. 268B has occurred. The inquiry is conducted by the Enforcement Division staff and is not an adjudicatory proceeding within the meaning of G.L. c. 30A, G.L. c. 268B, section 4 or the Commission's Regulations, 930 CMR 1.01(1)(c).

(B) With respect to each preliminary inquiry, the Enforcement Division will submit to the Commission a written report reviewing the evidence developed in the course of the inquiry, and recommending a finding and further enforcement action as may be appropriate.

(C) Prior to submitting a preliminary inquiry report regarding an alleged violation of G.L. c. 268A, the Enforcement Division will in writing notify the subject of the date the Commission is expected to meet to consider whether to find reasonable cause to believe that a violation of G.L. c. 268A has occurred. This notice will be mailed no later than thirty (30) days prior to the meeting in question. The subject may submit a brief written memo (generally not exceeding five pages in length) to the Commission regarding the allegations. Any such written submission must be received by the Commission at least ten (10) days before the meeting at which it will consider the matter.

This 30-day notice requirement shall not apply if its application would cause the matter to be time-barred under G.L. c. 268B, section 4(c) or 930 CMR 1.02(8). In such instances the Enforcement Division should at least orally notify the subject of its intention to submit a preliminary inquiry report and of the statute of limitations issue as soon as is practicable. If the subject wants more time to file a written response, the subject will have to enter into a statute of limitations tolling agreement with the Enforcement Division for that limited purpose.
 

Section 5: Preliminary Inquiry Determination


(A) On the basis of the Enforcement Division's preliminary inquiry report, the Commission will determine whether there is reasonable cause to believe that either G.L. c. 268A, Chapter 268B, or both have been violated.

(B) If the Commission does not find reasonable cause to believe that Chapter 268A or Chapter 268B has been violated, the Enforcement Division will immediately terminate the inquiry. The Enforcement Division Chief or his designee will so notify in writing the complainant, if any, and the subject of the inquiry.

(C) If the Commission finds reasonable cause to believe that a violation has occurred, it may, upon a majority vote of the Commission, take any action authorized by G.L. c. 268B, including authorizing an adjudicatory proceeding pursuant to 930 CMR 1.02, and filing a civil action pursuant to Sections 9, 15 or 21 of Chapter 268A.

(D) In lieu of an adjudicatory proceeding, the Commission may, by majority vote, resolve a matter through the issuance of a public disposition agreement, which may include the assessment of a civil penalty and other orders. In a disposition agreement, the subject must admit to the findings of fact, conclusions of law, and penalty, if any. The Commission may also resolve a matter through the issuance of a public education letter which assesses no civil penalty but which publicly reviews the alleged violations of law for preventative and educational purposes. A public education letter may be authorized where the facts and alleged violations warrant a public resolution without the formality and expense of an adjudicatory proceeding or an admission that a subject has violated G.L. c. 268A or G.L. c. 268B. A public education letter may be issued only with the consent of the subject.

(E) In lieu of a finding of reasonable cause to believe that a violation of G.L. c. 268A or 268B has occurred, the Commission may authorize the issuance of a confidential compliance letter identifying the alleged violations and warning that future violations may be pursued through a public proceeding. Compliance letters may be authorized where there are sufficient facts to warrant finding reasonable cause to believe a violation has occurred but where the violation does not involve either willful misconduct, significant economic advantage, the misuse of influence or confidential information, significant economic loss to the public, or the potential for serious impact on the public confidence in its officials, or other reasons deemed appropriate by the Commission.
 

Section 6: Confidentiality


Except as provided in G.L. c. 268B, section 4 and 930 CMR 3.01, all proceedings and records of the Commission relating to the initiation or conduct of any preliminary inquiry or initial staff review will be kept confidential by the Commission and the Commission staff.
 

Section 7: Investigative Summonses


(A) The Commission may authorize the issuance of summonses for investigative purposes, pursuant to section 4 of Chapter 268B. Investigative summonses may be authorized in the course of any preliminary inquiry upon a majority vote of the Commission. Summonses authorized by the Commission will be signed by the Chief or the Deputy Chief of the Enforcement Division and will be served in the same manner as summonses for witnesses in civil cases.

(B) The summons will specify the time and place for the attendance of the person, and what, if any, books and records are to be produced. A member of the Commission or any notary may administer the oath to any person summonsed to give testimony but need not remain to hear the testimony. A person summonsed to produce books and records may appear before a member of the Enforcement Division.

(C) Any testimony taken pursuant to a summons will be recorded either by mechanical means or by a stenographer. Any books and records produced may be retained by the Commission staff for as long as is necessary for the purposes of the investigation.
 

Section 8: Referral of Evidence to Law Enforcement Agencies


Where the Enforcement Division staff has evidence which may be used in a criminal proceeding, the Legal Division Chief will be responsible for referring the evidence to an appropriate law enforcement agency, pursuant to G.L. c. 268B, section 4(a).
 

Section 9: Adjudicatory Proceedings


(A) Adjudicatory proceedings authorized by the Commission will be initiated by an order to show cause issued by the Enforcement Division Chief or his designee.

(B) All adjudicatory proceedings will be conducted in accordance with the Rules of Practice and Procedure, 930 CMR 1.00.

(C) Before an order to show cause is issued, the Enforcement Division will inform the subject that the Commission has found reasonable cause and has authorized adjudicatory proceedings, and that the Enforcement Division will provide an opportunity to discuss resolution of the matter.
 

Section 10: Policy on Separation of Adjudicatory Functions from the Investigative and Prosecutorial Functions


(A) Policy:


This statement sets out the established policy of the Commission regarding the separation of its adjudicatory functions from its investigative and prosecutorial functions. The Commission believes that this policy maintains sufficient safeguards to guarantee that these functions are not combined to any improper extent and that no one involved in any investigative or prosecutorial capacity participates in the decision-making of the Commission.


(B) Definitions:


For purposes of this statement, the following terms shall be defined accordingly:

(1) Participation in the investigation and prosecution of alleged violations of G.L. c. 268B shall mean a personal and substantial involvement in a preliminary inquiry or adjudicatory proceeding by conducting interviews, gathering evidence, formulating investigative and prosecutorial strategy, or presenting the Petitioner's case to the Commission. A person who pursuant to G.L. c. 268B, section 4 administers an oath or hears testimony or receives other evidence in the proceeding before the Commission will not be deemed to have participated in that investigation or prosecution.

(2) Presiding Officer shall include any individual or individuals duly selected by the Commission to conduct an adjudicatory proceeding. See 930 CMR 1.01(1)(c)(8).

(3) For purposes of this policy a preliminary inquiry shall commence upon initiation pursuant to G.L. c. 268B, section 4(a); an adjudicatory proceeding shall commence upon the filing of an order to show cause pursuant to
930 CMR 1.01(5).


(C) Separation of Functions


(1) Within the staff of the Commission, there shall be an Enforcement Division and a Legal Division.

(2) Except as herein provided, no member of the Legal Division shall participate, as that term is defined above, in the investigation and prosecution of alleged violations of G.L. c. 268A or G.L. c. 268B. This prohibition shall not apply to a member of the Legal Division who, upon the request of the Executive Director, has been specifically directed by the Commission to so participate provided he does not render legal advice or otherwise assist the Commission and/or the Presiding Officer in that or a factually related inquiry or proceeding.

(3) No member of the Enforcement Division shall advise the Presiding Officer concerning the conduct of any adjudicatory hearing, advise the Commission concerning the rendering or content of any decision, or seek or have access to any decision, or seek or have access to any confidential materials in the possession of members of the Legal Division, Presiding Officer or Commissioner in connection with any adjudicatory proceeding.

(4) Once an adjudicatory proceeding commences, no Commissioner, Presiding Officer or member of the Legal Division shall advise or assist a member of the Enforcement Division will respect to the presentation of evidence or the making of legal argument.
 

Section 11: Ex Parte Communications

(A) Definition

(1) An ex parte communication is any oral or written communication, made to a Commissioner, Presiding Officer or member of the Legal Division without the parties being present, which either


(i) discloses facts material to a preliminary inquiry or adjudicatory proceeding and not otherwise before the Commission,

or,

(ii) is designed to influence Commission action.


A communication between or among members of the Commission, a Presiding Officer, and/or members of the Legal Division shall not be considered an ex parte communication for purposes of this section.

(2) The parties -- with respect to a preliminary inquiry, the parties shall mean any member of the Enforcement Division and the subject of the inquiry or his attorney. With respect to an adjudicatory proceeding, the parties shall mean the petitioner [as defined in 930 CMR 1.01(1)(c)(7)] and the respondent [as defined in 930 CMR 1.01(1)(c)(9)] or his attorney.

(3) A preliminary inquiry lasts from the time the Commission votes to initiate a preliminary inquiry [see G.L. c. 268B, section 4(a)] to the time an order to show cause is issued.[2]   An adjudicatory proceeding lasts from the time an order to show cause is issued to (a) where no violation is found, the time the Commission makes its final decision or (b) where a violation is found, ten days after the Commission makes its final decision, or, if a motion for reconsideration is made, the time the Commission disposes of that motion.


(B) No party to an adjudicatory proceeding shall make or knowingly cause to be made an ex parte communication. Upon receipt of an ex parte communication made in violation of this section, the Commission or Presiding Officer may, to the extent consistent with the interest of justice and the policy of the statutes administered by the Commission, require the party to show cause why his claim or interest in the proceeding should not be dismissed or otherwise adversely affected on account of such violation. The Commission may take such action as it considers appropriate.

(C) Procedures -- A Commissioner, Presiding Officer or member of the Legal Division who receives an ex parte communication, other than ex parte communication by a member of the Enforcement Division made during the course of a preliminary inquiry, shall promptly disclose to the Executive Director of the Commission the substance of the communication. The Executive Director shall make relevant portions of any such disclosure part of the preliminary inquiry file or adjudicatory docket, as the case may be, of the proceeding to which it pertains, but such materials will not be considered by the Commission as part of the public record for the proceeding. With respect to an adjudicatory proceeding, the Executive Director shall also send copies of the materials to, or otherwise notify, all parties to that proceeding.

(D) The prohibitions of paragraph B of this section do not apply to an ex parte communication of a member of the Enforcement Division made in connection with (1) a separate preliminary inquiry, whether or not that inquiry involves a party already in an adjudicatory proceeding or (2) the Commission's consideration of a disposition agreement.
 

Section 12: Disqualification


(A) If any matter comes before the Commission in which a member of the Commission, his close relative (see SFI Instructions), his partner, his client, a business organization in which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment has a financial interest, that member


(1) shall file a disclosure as required by G.L. c. 268A, section 6,

(2) shall not participate in any Commission action, discussion or deliberation of the matter,

(3) shall leave the room when the matter is taken up by the Commission,

(4) shall not at any time discuss the merits or the status of the matter formally or informally with any member of the Commission, with any current member of the staff, or with any former member of the staff who, while employed by the Commission, had access to confidential information about the matter,

(5) shall not at any time examine the Commission’s files or records pertaining to the matter, and

(6) shall not, while the matter is pending before the Commission, discuss its merits or status with anyone whose interest gave rise to the disqualification or with their representatives.


(B) The Executive Director or Chief of the Legal Division shall inform the Commission of any matter which presents facts and legal issues similar to those in any other matter which is pending and in which a member of the Commission is disqualified from participating. The disqualified Commissioner should thereupon determine whether he should participate in the similar case. That determination should be based on the degree to which resolution of the similar case would be dispositive of the case in which there is the disqualification. Doubts should be resolved in favor of disqualification.

(C) Once a Commissioner has disqualified himself pursuant to this section, the staff will not send or otherwise make available to that Commissioner any materials pertaining to that matter.

(D) Notwithstanding the above provisions, if three members of the Commission are disqualified under (A) from participating in a specific Commission action, discussion or deliberation, the disqualified members may nonetheless participate under a rule of necessity.
 

                                                                                   

 

ADOPTED BY THE COMMISSION: May 30, 1979

AMENDED: January 23, 1980

January 11, 1983

April 17, 1984

October 16, 1984

February 28, 1990

May 12, 1998

March 1, 2001

May 30, 2002

February 19, 2004

December 12, 2007

September 16, 2011

December 16, 2011

 


[1]  The positions of General Counsel and Chief of the Legal Division are one and the same. To keep clear the separate functions of the two divisions, the latter title shall be used. Accordingly, the Chief of the Legal Division shall be the chief legal officer of the Commission (see, G.L. c. 268B, section 2(m)) and shall perform the statutory duties of the General Counsel as set out in G.L. c. 268B, section 4(a). See, section 3 and (C) and section 8, infra.

[2]  This definition is for the purpose of section 11 only.