May 21, 2010

One Ashburton Place, Room 619

Boston, MA 02108




Chairman Charles B. Swartwood, III called the meeting to order at 9:02 a.m. Also in attendance were Commissioners Jeanne M. Kempthorne, David L. Veator, Patrick J. King and Paula Finley Mangum.



On the motion of Commissioner Kempthorne, seconded by Commissioner Mangum, the Commission voted 5-0 to waive the reading and approve the public and executive session minutes for the April 16, 2010 meeting.




Executive Director Karen L. Nober reported that the Senate issued its FY 2011 budget on Thursday. The Commission was level funded at the FY 2010 level. This is the same amount as provided in the Governor's budget and House budget for FY 2011, therefore we do not anticipate that any further changes to the budget will occur prior to formal approval by the Legislature and Governor.


IT Specialist/Special Investigator Position

Ms. Nober stated that 82 resumes were received for the IT Specialist/Special Investigator position. Fourteen candidates will be invited to participate in first round interviews. We have asked the IT Manager at OCPF to assist us in evaluating the candidates. The interviews will be conducted by staff in the Public Education and Communications Division and the Enforcement Division because the position will report to Public Education and Communications Division Chief David Giannotti and Enforcement Division Chief Stephen Fauteux.


Performance Evaluations

Ms. Nober stated that staff last received performance evaluations in 2006. Staff evaluations for the period June 2009 through June 2010 are underway and will be completed in the near future. Evaluation forms have been modified for managers, individual contributors and support staff. A staff meeting was held to discuss the forms, which have been distributed to staff. The evaluation will focus on core competencies and major job responsibilities. The evaluation will result in a numerical rating with comments. Staff will also be able to add comments to the evaluation. Staff will be required to sign the evaluation to acknowledge receipt, but it will not constitute agreement with the evaluation by the staff member.


Cost of Living Increase for Unclassified Commission Employees

Ms. Nober, speaking in her individual capacity, requested that the Commission amend her contract with the Commission to amend the provision of her contract that entitles her to any cost of living increase provided to other unclassified managers at the Commission, so that Ms. Nober could recommend a raise for unclassified staff without her having a financial interest in that recommendation. Ms. Nober stated that she was not seeking a pay increase for herself at this time. General Counsel Deirdre Roney then specifically asked the Commission to approve the Addendum to the Employment Agreement between the State Ethics Commission and Karen L. Nober, dated February 14, 2008, in the form presented to the Commission at the meeting of May 21, 2010, and to authorize the Chairman of the Commission to execute the Addendum on behalf of the Commission. After discussion by the Commission, Commissioner Kempthorne so moved. The motion was seconded by Commissioner Veator, and the Commission voted 5-0 to approve the motion.

Ms. Nober then asked the Commission to approve, effective June 21, 2010, a 2.5% cost-of-living wage adjustment ("COLA") for each of the Commission's unclassified employees who have been employed by the Commission for at least one year as of June 21, 2010; provided that the Executive Director would not be eligible for such COLA. Commissioner Veator so moved, and Commissioner King seconded that motion. The Commission voted 5-0 in favor of the motion.

Ms. Nober explained that the COLA for unclassified employees would affect division chiefs, deputy chiefs and most of the lawyers in the Legal Division. All other staff are subject to the financial provisions of the NAGE, Unit 6 collective bargaining agreement, which provides for annual step increases and COLAs. The last COLA for Unit 6 was 3% in July 2007, and the state recently reached agreement with Unit 6 for additional raises, commencing in July.


Future Meetings

Ms. Nober stated that future Commission meetings have been scheduled for Friday, June 4, 2010, to review the draft regulations, Friday, June 18, 2010, and Friday, July 16, 2010. The meetings will begin at 9:00 a.m.



Public Education and Communications Division Chief David Giannotti provided his report of public education division activities for April, 2010. The Commission had no questions.



Commission Interpretation of the Distinction Between General and Special Legislation

Ms. Roney presented a draft Advisory on general and special legislation. At the April 16, 2010 meeting, the Commission voted to replace its existing precedent concerning the distinction between general and special legislation 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," and to create a presumption against finding legislation to be "special," based on the constitutional concerns created in this area by Articles 21 and 22. The draft Advisory will be posted on the Commission's website to publicize this change.

After discussion by the Commission, on the motion of Commissioner King, seconded by Commissioner Veator, the Commission voted 5-0 to approve the draft Advisory.


Legal Division Metrics

Ms. Roney presented the Legal Division metrics for April 2010. The division handled 69 staff letters and email requests, 558 phone calls, and 13 municipal counsel opinions. There are 14 opinion requests older than 30 days, and 30 pending requests for advice.


The Commission had no questions.


Adjudicatory Matters

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.


Litigation Matters

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 retained counsel who has agreed to file a brief by May 15, 2010. The Legal Division has withdrawn its motion to dismiss the appeal for failure to prosecute;


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 has filed a motion for reconsideration;


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


U.S. v. Dianne Wilkerson: 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. Ms. Roney will appear as the witness.



Ms. Roney noted that the Commission would enter deliberations in the following matter during executive session:


In Re Elizabeth Story, Docket No. 10-0004;



Enforcement Division FY 2010 3rd Quarter Metrics

Enforcement Division Chief Stephen P. Fauteux presented the third quarter Enforcement Division metrics. The Commission had no questions.



At 9:25 a.m., on the motion of Commissioner Mangum 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.



Chairman Swartwood         yes

Commissioner Kempthorne yes

Commissioner Veator         yes

Commissioner King            yes

Commissioner Mangum      yes


Chairman Swartwood stated that the Commission would return to public session following the executive session.



At 10:10 a.m., the Commission returned to public session.



The Commission discussed a process for evaluating Ms. Nober's performance.



At 10:23 a.m., on the motion of Commissioner Kempthorne, seconded by Commissioner Veator, the Commission voted 5-0 to adjourn.


Respectfully submitted,

David Giannotti
Public Education and Communications Division Chief