MINUTES OF THE STATE ETHICS COMMISSION MEETING
November 19, 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 Patrick J. King, Paula Finley Mangum and Martin F. Murphy.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner King, seconded by Commissioner Mangum, the Commission voted 4-0, to waive the reading and approve the public session and executive session minutes for the October 14, 2010 meeting.
Commissioner David L. Veator arrived at 9:04 a.m.
EXECUTIVE DIRECTOR'S REPORT
Executive Director Karen L. Nober introduced Katelyn Farago as the new Enforcement Division Special Investigator. Ms. Nober reviewed Ms. Farago's qualifications. The Commissioners welcomed Ms. Farago and extended their best wishes for her success.
Ms. Nober reported that maintenance spending plans have been submitted. A budget expansion request has not been submitted because it has not yet been requested.
Committee of the Commission
Ms. Nober stated that the Legal Committee met on November 4, 2010 and discussed drafts of three Political Activity Advisories. The plan is to present the final revisions of the drafts to the Commission at the December meeting for approval.
Complaint Acknowledgment Procedures
Ms. Nober informed the Commission that the Commission practice is to acknowledge in writing the receipt of complaints. During the recent election cycle, there were instances in which complaints were sent to the Commission, and complainants then publicly released the acknowledgment letters the Enforcement Division sent to them. Ms. Nober said she plans to review whether to delay or withhold sending acknowledgment letters for a specific period of time preceding an election to prevent frivolous complaints and to avoid having the Commission's letters being used for political purposes. The Office of Campaign and Political Finance has a similar practice.
Ms. Nober stated that the Ware Report on the Probation Department has been publicly released by the Supreme Judicial Court. The Justices stated that they were referring the report and its exhibits to certain agencies. The Commission was not included in those agencies, but staff will review the report.
Council on Government Ethics Laws
Ms. Nober stated that she and General Counsel Deirdre Roney will attend the next COGEL conference in Washington D.C. in December.
New Legislators School
Ms. Nober stated that she will again conduct a briefing on the Commission and the conflict of interest law for new legislators at the program hosted by the Donahue Institute at UMass/Amherst, on December 8, 2010.
Ms. Nober reminded Commissioners that the luncheon for Commissioner Kempthorne, who just completed her term as Commissioner, is scheduled for November 29, 2010 at 12:30 p.m.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, December 17, 2010 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 October, 2010. He also stated that the 2007 Rulings, the Commission publication of advisory opinions and enforcement actions, had been issued. He recognized the efforts of Public Education Division Special Counsel Norah Mallam in drafting the Rulings. He reported that the 2008 and 2009 Rulings should be issued within the next several months, and the 2010 Rulings should be issued on schedule in February 2011. The Commission had no questions.
ENFORCEMENT DIVISION MATTERS
Enforcement Division Chief Stephen P. Fauteux presented Enforcement Division metrics for the first quarter of FY 2011. Mr. Fauteux noted that the number of complaints and follow-ups has increased, while the average age of pending cases was down, from 11.4 months to 7.4 months. Mr. Fauteux noted that there has been a decrease in case productivity. The decrease is probably related to a shift in division resources to handle the increase in complaints. The Commission had no questions.
LEGAL DIVISION MATTERS
Legal Division Metrics
Ms. Roney presented the Legal Division metrics for October 2010. The division handled 37 staff letters and email requests for written advice; 311 telephone or walk-in contacts in which oral advice was provided; and reviewed 8 municipal counsel opinions. Seven opinion requests for written advice are older than 30 days, and 21 requests for written advice are pending.
The Commission had no questions.
Approval of New Regulations
Ms. Roney presented the draft regulations for final approval. She noted that changes were made based on the discussion at the last Commission meeting and further staff review, and that most changes were made for easier reading, consistency, and format. She then summarized the significant changes since the last draft reviewed by the Commission.
A. 930 CMR 1.01, hearing procedures. No significant changes.
B. 930 CMR 1.02(8)(e), statute of limitations. Language added to clarify that "actual knowledge" of Enforcement Division for purposes of commencing running of limitations period includes situations where a complaint has been received at the Commission's office.
C. 930 CMR 2.02(12), SFI filers - definition of policymaking position. No significant changes.
D. 930 CMR 3.01(6), confidentiality. Revised language with respect to informing complainants about the disposition of complaints to make it clear that doing so is discretionary with the Commission.
E. 930 CMR 5.00, exemptions related to gifts.
F. 930 CMR 5.05, substantially revised definition of "substantial value":
1. further explains how Commission determines value of attendance at an event;
2. specifies that in calculating value of attendance at event, cost of rental of venue is not included; and
3. added 2 illustrative examples.
G. 930 CMR 5.08(2), travel expenses.
1. reorganized section for clarity to put definitions first, exemptions after; deleted excess language;
2. eliminated disclosure requirement when travel is paid for by another public agency; added illustrative examples;
3. specified that where acceptance of paid-for travel is authorized because of a determination that a public purpose will be served, the person making the determination also has to find that the public purpose outweighs any special non-work related benefit to the employee or the person paying for the travel.
H. 930 CMR 5.08(4)(d), honoraria, added disclosure requirement.
I. 930 CMR 5.08(6), eliminated ability to accept monetary gifts in connection with receipt of an award unless neither gift awarder nor sponsor has had or will have official dealings with recipient. (No exemption would be needed if a monetary award were pursuant to a program created by a statute or regulation.)
J. 930 CMR 5.09(2)(b), lobbyist gifts, specified that this does not authorize giving of birthday gifts.
K. 930 CMR 6.20, exemptions re town clerks. Significant changes:
i. Make more specific the treatment of appointed clerks, who have a potential financial interest in elections from which they need an exemption in years when their appointing authorities are on the ballot and the clerk's term is going to expire;
ii. Specify that clerks may assist absentee voters with ballots; and
iii. Other minor changes as suggested by Elections Division.
L. 930 CMR 7.00, definition of former agency for purposes of lobbyists' one-year cooling off period. No changes.
M. 930 CMR 6.06, Exemption to Allow State Employees to Provide Services to the Massachusetts Committee for Public Counsel Services:
Commissioner Murphy abstained from this matter.
Following presentation by Ms. Roney, and discussion by the Commission, on the motion of Commissioner Mangum, seconded by Commissioner Veator, the Commission voted 4-0, with Commissioner Murphy abstaining, to adopt new 930 CMR 6.06, as presented to the Commission at its meeting on November 19, 2010, and to complete procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
930 CMR 6.13, Exemption for Consultants, Including Attorneys, Providing Services to State Agencies:
Commissioners Murphy and Veator abstained from this matter.
Following presentation by Ms. Roney, and discussion by the Commission, on the motion of Commissioner Mangum, seconded by Commissioner King, the Commission voted 3-0, with Commissioners Murphy and Veator abstaining, to adopt new 930 CMR 6.13, as presented to the Commission at its meeting on November 19, 2010, and to complete procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
All Proposed Regulations Other Than 930 CMR 6.06 and 6.13.
Following presentation by Ms. Roney, and discussion by the Commission, on the motion of Commissioner Mangum, 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, as presented to the Commission at its meeting on November 19, 2010, and to complete procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
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 provided an update on the following litigation matters:
A. John F. Scott v. Commonwealth. Scott filed a Chapter 30A appeal from the Commission's October 8, 2009 decision finding that he violated §3(a) and has made an exceedingly perfunctory motion for judgment on the pleadings. Our response has been served on opposing counsel and we are awaiting scheduling of argument.
B. Lincoln Smith v. Commonwealth. Chapter 30A appeal from the Commission's 8/18/08 decision finding Smith had violated § 23(b)(2). Judge Cratsley denied Smith's motion for reconsideration of his decision upholding the Commission's decision. Smith has filed a notice of appeal. The Appeals Court, on October 6, 2010, treated Smith's motion for an extension of time to find new counsel as a motion for a stay, and stayed the matter until November 15, 2010, requiring him to file a status report on whether he has found new counsel by that time. The deadline has passed, and the Legal Division will now move to have the case dismissed.
C. Thomas Jefferson v. SEC. Chapter 30A appeal from the Commission's April 28, 2010 decision finding that he violated §§ 23(b)(2) and (3). We have filed the record. Jefferson's motion to include in record evidence not before Commission was recently denied.
D. Theresa Lord Piatelli v. SEC. Chapter 30A appeal from the Commission's April 26, 2010 decision finding that she violated §§ 17 and 23(b)(2). We will file record shortly.
E. Aiello v. Manzi. Subpoena seeks our investigative file in a federal civil case. Ms. Roney reported that the matter has been resolved.
The Commission had no questions.
At 9:39 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Veator, the Commission voted 5-0 to enter into executive session to discuss matters subject to the provisions of G.L. c. 30A, section 21, subparagraphs (a)(2), (a)(3) and (a)(7), and G.L. c. 268B, sections 3 and 4. Chairman Swartwood stated that these matters will include litigation strategy, preliminary inquiry reports and recommendations, closing memoranda, disposition agreements, public and private education letters, advisory opinions and contract negotiations with the Executive Director.
VOTE: Chairman Swartwood yes
Commissioner Veator yes
Commissioner King yes
Commissioner Mangum yes
Commissioner Murphy yes
Chairman Swartwood stated that the Commission would reconvene in public session following the executive session.
LIST OF DOCUMENTS USED FOR THIS MEETING
- Agenda for Meeting of November 19, 2010.
- Minutes of the State Ethics Commission Meeting for October 14, 2010, Public Session and Executive Session.
- Memorandum of David Giannotti dated November 10, 2010, concerning Public Education and Communications Division activities for October 2010.
- Memorandum of Stephen P. Fauteux dated November 10, 2010 concerning Enforcement Metrics as of September 30, 2010.
- Memorandum of Deirdre Roney dated November 10, 2010 setting forth Legal Division matters for meeting.
- Tab A, Draft 930 CMR 1.01, hearing procedures.
- Tab B, Draft 930 CMR 1.02(8)(e), statute of limitations.
- Tab C, Draft 930 CMR 2.02(12), SFI filers - definition of policymaking position.
- Tab D, Draft 930 CMR 3.01(6), confidentiality.
- Tab E, Draft 930 CMR 5.00, exemptions related to gifts.
- Tab F, Draft 930 CMR 6.00, non-gift exemptions.
- Tab G, Draft 930 CMR 7.00, definition of former agency for purposes of lobbyists' one-year cooling off period.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
- Legal Division Monthly Pending Adjudicatory Proceeding Status Report.
Public Education and Communications Division Chief