MINUTES OF THE STATE ETHICS COMMISSION MEETING
April 16, 2010
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood, III called the meeting to order at 9:08 a.m. Also in attendance were Commissioners Jeanne M. Kempthorne, David L. Veator, Patrick J. King and Paula Finley Mangum.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner Veator, seconded by Commissioner King, the Commission voted 4-0, with Commissioner Kempthorne abstaining, to waive the reading and approve the public and executive session minutes for the March 19, 2010 meeting.
EXECUTIVE DIRECTOR'S REPORT
Executive Director Karen L. Nober reported that the House of Representatives issued its FY 2011 budget on Wednesday. The Commission was level funded at the FY 2010 level. This is the same amount provided in the Governor's budget for FY 2011. We are now awaiting the Senate's budget.
IT Specialist/Special Investigator Position
Ms. Nober stated the IT Specialist/Special Investigator position was posted yesterday. Funding for the position is available by using the vacant Municipal Education Specialist position and using some funding from the position held by Anne Marie Quinlivan. Ms. Nober said that the IT Specialist part of the position will report to Public Education and Communications Division Chief David Giannotti. Since the IT responsibilities will not be full-time, the person hired into the position will also assist the Enforcement Division as a Special Investigator, reporting to Enforcement Division Chief Stephen Fauteux.
Statement of Financial Interests
Ms. Nober stated that changes were made to the SFI Form and Instructions as a result of a change in lobbyist gift restrictions contained in the Ethics Reform Bill. Changes were also made to better protect filer home addresses. Substantial changes were made to the form and instructions to make them clearer and more user-friendly. While changes to the paper form were made easily, changes to the electronic version required programming that could only be done by the Commission's vendor. We contacted the vendor and they were very responsive and helpful. The new application was made available April 15, 2010, while the paper forms have been available for manual filers since the end of March.
We failed to take into account this year that all elected officials are up for re-election. They have to file their SFIs before they can file their nomination papers with the Secretary of State's Office. They have not been able to electronically file until today, although they have been able to file manually. For designated public employees, the deadline to file was May 1, 2010; however, the deadline has been extended to May 17, 2010, to ensure that they have at least a month in which to complete their SFI's.
The Commission scheduled a meeting for Friday, June 4, 2010 at 9:00 a.m. to review the draft regulations. Ms. Nober stated that future Commission meetings have been scheduled for Friday, May 21, 2010, Friday, June 18, 2010 and Friday, July 16, 2010. The meetings will begin at 9:00 a.m.
LEGAL DIVISION MATTERS
General Counsel Deirdre Roney presented a draft regulatory definition of the term "governmental body" for purposes of section 5, as required by the Ethics Reform Bill, to the Commission for review and comment. Ms. Roney stated that she will present revised drafts of all draft regulations currently under consideration at the June 4 th meeting.
Commission Interpretation of the Distinction Between General and Special Legislation
Ms. Roney presented a memorandum on general and special legislation, which recommended that the Commission vote to replace existing precedent concerning the distinction between general and special legislation. After discussion by the Commission, on the motion of Commissioner Kempthorne, seconded by Commissioner Veator, the Commission voted 5-0 to approve the following:
a. To eliminate the existing interpretation based on case law under the Home Rule Amendments, and the glosses that have been put upon that case law, such as the idea that use of the words "notwithstanding the provisions of any general or special law to the contrary" automatically makes legislation special, even if only one such factor is present.
b. Replace the existing interpretation with the definition of "special" legislation used in the Article 10 context, that is, "legislation addressed to a particular situation, that does not establish a rule of future conduct with any substantial degree of generality, and may provide ad hoc benefits of some kind for an individual or a number of them." Commissioner of Public Health v. Bessie M. Burke Memorial Hospital, supra, 366 Mass. at 740.
c. Create a presumption against finding legislation to be "special," based on the constitutional concerns created in this area by Articles 21 and 22.
Under the new interpretation, legislation is presumed to be general, and will be found to be special only if it does not establish any general rule, and only provides a benefit or benefits to individuals in a particular situation.
Policy on Campaign Contributions by Commission Members and Staff
Ms. Roney presented a memorandum on contributions to federal political campaigns by Commission members and staff, and a proposed policy concerning political contributions by Commissioners and staff. Following discussion by the Commission, on the motion of Commissioner Kempthorne, seconded by Commissioner King, the Commission voted 5-0 to eliminate the current Section 3.9 of the Commission Personnel Manual, and to substitute in place of the policy the language of c. 268B, section 2(f).
Legal Division Metrics
Ms. Roney presented the Legal Division metrics for March 2010. The division handled 95 staff letters and email requests, 658 phone calls, and 10 municipal counsel opinion. There are 18 opinion requests older than 30 days, and there are 41 pending requests for advice.
The Commission had no questions.
Ms. Roney presented a calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings, and a monthly status report of adjudicatory proceedings.
The Commission had no questions.
Ms. Roney requested that the Commission appoint a Hearing Officer for In Re Joseph Lally, Jr. Chairman Swartwood was appointed as Hearing Officer.
A report in the packet updated the following litigation matters:
John F. Scott v. Commonwealth: John Scott has appealed the October 8, 2009 Decision and Order to the Superior Court. Scott has yet to file a brief in the case. The Legal Division has filed a motion to dismiss the appeal for failure to prosecute;
Lincoln Smith v. Commonwealth: Lincoln Smith has appealed the August 18, 2008 Decision and Order. The Commission filed a brief on February 11, 2010. Judge Cratsley heard argument on March 31, 2010, Lauren E. Duca appearing for the Commission, and reserved decision;
Maureen Brennan v. Commonwealth: Maureen Brennan has appealed the March 3, 2009 Decision and Order. The Commission filed a brief on December 4, 2009. Judge Cratsley heard argument on February 5, 2010, David A. Wilson appearing for the Commission, and reserved decision;
Maglione v. Adamson & Giannino: Joseph Maglione filed an action for slander against two witnesses in the Commission's adjudicatory matter, In Re Joseph Maglione. A scheduled deposition of Special Investigator Brian McWilliams by Maglione was postponed while the defendants seek new counsel; and
Setters v. Boyd: The Commission received a third party subpoena seeking a complaint file. The subpoena was withdrawn once the Legal Division filed a motion to quash the subpoena.
Ms. Roney noted that the Commission would continue deliberations in the following matters during executive session:
In Re Theresa Lord Piatelli, Docket No. 07-0013;
In Re Thomas Jefferson and Paul Wormser, Docket No. 09-0008; and
In Re Daniel Rowan, Docket No. 10-0002.
PUBLIC EDUCATION MATTERS
Public Education and Communications Division Chief David Giannotti provided his report of public education division activities for March, 2010. The Commission had no questions.
At 9:54 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Kempthorne, the Commission voted 5-0 to enter into executive session pursuant to G.L. c. 30A, §§ 11A ½, subparagraphs (2) and (7), and G.L. c. 268B, §§ 3 and 4.
Chairman Swartwood stated that the Commission would not return to public session following the executive session.
Chairman Swartwood yes
Commissioner Kempthorne yes
Commissioner Veator yes
Commissioner King yes
Commissioner Mangum yes
Public Education and Communications Division Chief