MINUTES OF THE STATE ETHICS COMMISSION MEETING
June 18, 2010
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood, III called the meeting to order at 9:05 a.m. Also in attendance were Commissioners Jeanne M. Kempthorne, David L. Veator, Patrick J. King and Paula Finley Mangum.
In Re James Ruberto, Docket No. 08-0014 and Daniel Duquette, Docket No. 08-0015:
Closing arguments in the adjudicatory hearing were conducted before the Commission. Chairman Swartwood requested that Commissioner King, the hearing officer in the matter, preside over the meeting during closing arguments.
The Respondent, Daniel Duquette, was represented by Attorney Yixin Tang and Attorney Anthony Froio. Attorney Tang presented his closing argument beginning at 9:05 a.m. and ending at 9:32 a.m.
The Respondent, James Ruberto, was represented by Attorney Leonard Cohen. Attorney Cohen presented his closing argument beginning at 9:32 a.m. and ending at 9:54 a.m.
The Petitioner, the Enforcement Division of the Commission, was represented by Enforcement Division Staff Counsel Candies Pruitt-Doncaster. Attorney Pruitt-Doncaster presented her closing argument beginning at 9:54 a.m. and ending at 10:19 a.m.
Closing arguments were concluded at 10:19 a.m.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner Kempthorne, seconded by Commissioner Veator, the Commission voted 5-0 to waive the reading and approve the public session minutes for the June 4, 2010 meeting and the public session and executive session minutes for the May 21, 2010 meeting.
EXECUTIVE DIRECTOR'S REPORT
Executive Director Karen L. Nober reported that the FY 2011 budget is not yet finalized. Although the Commission has been level-funded in each version of the budget ($1,731,122), there is a possibility that there will be additional budget cuts, depending on whether the state receives federal funding that it has already factored into the budget. A 3.6% cut in funding is being discussed as a possibility, and a budget review is being conducted to determine how the Commission would respond to potential budget cuts.
IT Specialist/Special Investigator Position
Ms. Nober stated 83 resumes were received for this position, and the remaining first round interviews will be completed next week. A final round of interviews will be scheduled the following week.
Ms. Nober reported that a total of 4,768 current and former employees, and candidates for public office, were required to file SFIs this past May. At the end of May, late filing notices were sent to 238 delinquent current employees and 80 delinquent former employees. As of June 17, 2010, 11 current employees and 60 former employees had yet to file their SFIs. Letters will be sent to the agency heads of the current employees notifying them that those employees cannot work or be paid until they file.
For the period April 16-May 25, 2010, SFI Financial Analyst David Mesquita handled just over 1300 telephone calls on SFI issues.
Ethics Reform Law - Special Commission on Office of Public Accountability
Ms. Nober stated that Section 104 of the ethics reform law established a special commission to study the creation of an independent office of public accountability, which would combine into one entity the functions of the Ethics Commission, OCPF, and the lobbyist division of the Secretary of State's Office. The legislation directs the special commission to file a report, with recommendations and legislative proposals, with the Legislature by July 31, 2010.
The bill lists 9 factors to be considered by the special commission, including for example, cost and cost-savings to be achieved, personnel needs, information-sharing within the agency and with outside enforcement agencies, and whether such a consolidation would jeopardize the confidentiality provisions of the ethics laws.
The legislation does not designate a Chair. The composition of the special commission is the Secretary of the Commonwealth (or designee); director of OCPF (or designee); executive director of the Commission (or designee); 3 members of the Senate; 3 members of the House; and 2 members to be appointed by the Attorney General. The Secretary of State's Office sent emails on June 17, 2010 to set up the special commission's first meeting, which will probably occur July 1.
Ms. Nober stated that staff performance evaluations for the past year are being completed. This is the first year we have used the evaluation forms. Ms. Nober will meet with division chiefs after evaluations have been completed to determine if improvements to the form should be made for next year.
Commissioner Mangum stated that she and Commission Veator are meeting to discuss the evaluation process for the Executive Director. She and Commissioner Veator will be contacting division chiefs to schedule meetings to review the Executive Director's performance.
Ms. Nober requested that a Legal Committee meeting be scheduled within the next several weeks to discuss proposed revisions to the Commission's advisory on political activity. The Legal Committee is chaired by Commissioner Veator. Committee members include Chairman Swartwood and Ms. Nober. All Commission members are welcome to attend and participate in committee meetings. Commissioner Veator and Chairman Swartwood indicated that they would select a date in July.
Ms. Nober reported that Chairman Swartwood has graciously agreed to host an end of summer outing for the Commission on Saturday, September 11, the weekend after the Labor Day weekend. All Commissioners and Commission staff (and families) are invited to attend. Additional details will be provided later during the summer.
Ms. Nober stated that future Commission meetings have been scheduled for Friday, July 16, 2010 and Friday, September 17, 2010. There will not be an August meeting. The meetings will begin at 9:00 a.m.
PUBLIC EDUCATION MATTERS
Public Education and Communications Division Chief David Giannotti provided his report of public education division activities for May, 2010. Mr. Giannotti updated the web statistics numbers for May. The Commission had no questions.
LEGAL DIVISION MATTERS
General Counsel Deirdre Roney provided an update on the formal regulatory process for the draft regulations. Ms. Roney recommended that two public hearings be conducted, one in Boston and one in western Massachusetts, in addition to a public comment period. Ms. Roney and Ms. Nober plan to attend both public hearings. There is no requirement for Commissioners to attend public hearings. However, the last time regulations were adopted, Commissioner Kempthorne attended the public hearing and presided as the hearing officer.
Chairman Swartwood commented that he believed Commissioner attendance at the public hearings was important. He also suggested that the public hearings be held in September to allow for greater public participation.
Ms. Roney stated that the Attorney General's office has suggested regulatory language to give them greater latitude in hiring outside counsel without outside counsel violating G.L. c. 268A, sections 4 and 7. Ms. Roney requested that the Commission vote to approve revised proposed 930 CMR 6.13(d), language proposed by the Attorney General and applying to special assistant attorney generals.
Commissioner Veator abstained from the matter and left the meeting room at 10:40 a.m.
After discussion by the Commission, on the motion of Commissioner King, seconded by Commissioner Kempthorne, the Commission voted 4-0, with Commissioner Veator abstaining, to adopt revised proposed 930 CMR 6.13(d), as presented to the Commission at its meeting on June 18, 2010, and as revised by the Commission at that meeting, in place of the version of that regulation considered by the Commission at its meeting on June 4, 2010.
Commissioner Veator returned to the meeting at 10:41 a.m.
Ms. Roney requested that the Commission vote to approve proposed 930 CMR 6.06, creating an exemption for state employees providing services to the Committee for Public Counsel Services.
Commissioner Kempthorne abstained from the matter and left the room at 10:41 a.m.
After discussion by the Commission, on the motion of Commissioner Veator, seconded by Commissioner King, the Commission voted 4-0, with Commissioner Kempthorne abstaining, to replace the Commission's vote concerning proposed regulations on June 4, 2010, with the following: to adopt new 930 CMR 6.06, as presented to the Commission at its meeting on June 4, 2010, and as revised by the Commission at that meeting; and to commence procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
Commissioner Kempthorne returned to the meeting at 10:42 a.m.
Ms Roney requested that the Commission vote to approve all proposed regulations except the proposed regulations voted above, 930 CMR 6.06 and 930 CMR 6.13(d).
After discussion by the Commission, on the motion of Commissioner Kempthorne, seconded by Commissioner King, the Commission voted 5-0 to adopt the following new or amended regulations: 930 CMR 1.01, 1.02(10), 2.02(12), 3.01(6), 5.00, 6.00, and 7.00, excluding 6.06 and 6.13(d), as presented to the Commission at its meetings on June 4 and 18, 2010, and as revised by the Commission at those meetings; and to commence procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
Political Activity Advisory
Legal Division Deputy Chief David A. Wilson presented a memorandum on possible changes to Advisory 84-01: Political Activity. The matter was referred to the Legal Committee for review.
Legal Division Metrics
Ms. Roney presented the Legal Division metrics for May 2010. The division handled 48 staff letters and email requests, 480 phone calls, and 7 municipal counsel opinions. There are 13 opinion requests older than 30 days, and 31 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.
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 finding that he violated section 3(a) to the Superior Court. Scott has retained counsel who has agreed to file a brief by May 15, 2010. The Legal Division agreed to withdraw its motion to dismiss the appeal for failure to prosecute. No brief has been filed as yet;
Lincoln Smith v. Commonwealth: Lincoln Smith appealed the August 18, 2008 Decision and Order. Judge Cratsley issued a Decision affirming the Commission's decision on April 30, 2010. Smith filed a motion for reconsideration, which was denied;
Maureen Brennan v. Commonwealth: Maureen Brennan has appealed the March 3, 2009 Decision and Order finding that she violated sections 19 and 23(b)(3). 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. A date for the deposition will be scheduled soon;
U.S. v. Dianne Wilkerson, U.S. v. Chuck Turner: The U.S. Attorney has requested a "keeper of the records" witness from the Commission for the trial currently scheduled to commence June 21, 2010. However, Wilkerson has since pled guilty. They will probably make a similar request in connection with the Turner matter, which is scheduled for trial in October 2010. Ms. Roney will appear as the witness; and
Thomas Jefferson v. Commonwealth: Thomas Jefferson has appealed the Commission's April 28, 2010 decision finding that he violated sections 23(b)(2) and (3).
Ms. Roney noted that the Commission would enter deliberations in the following matter during executive session:
In Re James Ruberto, Docket No. 08-0014 and In Re Daniel Duquette Docket No. 08-0015.
At 11:06 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, subparagraph (7), and G.L. c. 268B, §§ 3 and 4.
VOTE: Chairman Swartwood yes
Commissioner Kempthorne yes
Commissioner Veator yes
Commissioner King yes
Commissioner Mangum yes
Chairman Swartwood stated that the Commission would not return to public session following the executive session.
Public Education and Communications Division Chief