MINUTES OF THE STATE ETHICS COMMISSION MEETING

September 10, 2010

One Ashburton Place, Room 619

Boston, MA 02108

PUBLIC SESSION

 

MEETING CONVENED

Chairman Charles B. Swartwood, III called the meeting to order at 10:05 a.m. Also in attendance were Commissioners David L. Veator, Patrick J. King and Paula Finley Mangum. Commissioner Jeanne M. Kempthorne arrived at 10:07 a.m.

 

APPROVAL OF MEETING MINUTES

Commissioner King stated that the July 16, 2010 draft meeting minutes for the public session, under the Executive Director's report on future meetings, incorrectly lists the date of the September Commission meeting as September 17, 2010 instead of September 10, 2010. On the motion of Commissioner Veator, seconded by Commissioner King, the Commission voted 5-0 to waive the reading and approve the public session minutes, as amended, and the executive session minutes for the July 16, 2010 meeting.

 

EXECUTIVE DIRECTOR'S REPORT

Personnel

Executive Director Karen L. Nober introduced Anthony Webb as the new Information Technology Specialist/Investigator. Ms. Nober reviewed Mr. Webb's qualifications. The Commissioners welcomed Mr. Webb and extended their best wishes for his success.

Ms. Nober stated that, with Mr. Webb's hiring, an employment application was utilized, in addition to a resume, and a background check was conducted by the Attorney General's Office. Ms. Nober said she was pleased with the way the process worked and with the cooperation extended to the Commission by the Attorney General's Office.

Ms. Nober informed the Commission that Enforcement Division Senior Investigator Geeta McGrath has resigned and would be leaving the Commission on October 1, 2010, after 12 years with the Commission. Ms. Nober said that Ms. McGrath was a valuable part of the Enforcement Division and she will be missed. Enforcement Division Chief Stephen P. Fauteux echoed Ms. Nober's comments, and said that Ms. McGrath is one of the best, most productive investigators ever employed at the Commission.

Ms. Nober stated that the investigator position has been posted, and so far 140 resumes have been submitted. The resumes will be reviewed, and qualified candidates invited in for interviews.

Ms. Nober informed the Commission that Budget Director Mary Jane Grace has also resigned and her last day is today. Ms. Grace has taken a position as a payroll administrator with the Department of Conservation and Recreation. Ms. Nober expressed her sincere appreciation for Ms. Grace's service to the Commission. Ms. Nober said she is reviewing how she plans to replace Ms. Grace.

 

New Commissioner Appointment

Ms. Nober stated that the Attorney General appears poised to appoint a new commissioner to replace Commissioner Kempthorne, whose term is expiring. Ms. Nober anticipates that the new commissioner will be appointed in time for the October Commission meeting. Ms. Nober is planning an event for Commissioner Kempthorne.

 

Budget

Ms. Nober reported that she and Budget Director Mary Jane Grace met with our A&F budget analyst and we have submitted to A&F our FY 2011 spending plan. The FY 2012 and FY 2013 spending plans are due at the end of the month. With the departure of Ms. Grace, Enforcement Division Administrative Assistant Mary Murphy will provide assistance on budget matters and Legal Division Administrative Assistant Theresa Omodei will handle payroll until a new person is in place. Ms. Nober said that both Ms. Murphy and Ms. Omodei did a great job handling budget and payroll last year during a similar transition period.

 

Council on Government Ethics Laws (COGEL)

Ms. Nober stated that the annual COGEL conference will be held in Washington D.C. in December, 2010. Commission staff did not attended the 2008 or 2009 conferences. Ms. Nober expressed her wish to attend this year's conference along with General Counsel Deirdre Roney and any interested Commission members. The conference will provide an opportunity to meet with counterparts from other agencies. She provided a per-person cost estimate of $1,400 and said that there was money in the budget to fund this. The Commissioners agreed with Ms. Nober that staff and interested Commissioners should attend the conference.

 

Ethics Reform Law - Special Commission on the Office of Public Accountability

Ms. Nober stated that the Special Commission has met three times. The Ethics Reform Bill legislation required the Special Commission to report back to the legislature by July 31, 2010. The Special Commission prepared a report, a copy of which is in the Commissioners' packets. The report recommends extending reporting deadlines for two years as agencies continue to implement the new requirements and develop cost estimates. Ms. Nober stated that if it can be determined that there would be no cost savings in connection with creating an Office of Public Accountability, then it may not make sense to analyze the other factors listed in the ethics reform law. The Special Commission will next meet in early 2011.

 

Legal Committee

The Legal Committee of the Commission, chaired by Commissioner Veator, met on July 15, 2010. The committee discussed the political activity advisory, and decided to draft four separate advisories tailored to different public employee groups: elected officials, appointed policymakers, appointed non-policymakers and election officials. The advisories will address the most common questions that come in to the Legal Division. The committee will next meet in October, and is planning to have draft advisories for the Commission to review at its November meeting.

 

SFI Update

Ms. Nober discussed recent media articles that discussed the difficulty the Commission has had with producing large numbers of SFIs requested by media organizations. Ms. Nober explained the process of reviewing the forms and redacting information in order to comply with the public records law. These requests have been time-consuming for staff. Ms. Nober also discussed privacy issues and the statutory requirement that requestors produce identification and the Commission notify filers when their form has been requested. She noted that while we cannot make SFIs available online, media organizations can and have done so. We are in the process of reviewing how other states handle financial disclosure forms. We are looking for ways to minimize staff time required to produce SFIs while making the forms more readily available. The new IT Specialist may be able to assist in this process.

 

Future Meetings

Ms. Nober stated that the next Commission meeting is scheduled for Friday, October 15, 2010 at 9:00 a.m. She also announced that the end of summer outing will take place at the Chairman's home on Saturday, September 11, 2010.

 

Public Hearings

General Counsel Deirdre Roney reported that public hearings to accept comment on the proposed regulations have been scheduled for Tuesday, September 21, 2010 at Holyoke Community College from 12:00 noon to 4:00 p.m. and on Thursday, September 23, 2010 in the conference room on the 21 st floor at One Ashburton Place, Boston from 10:00 a.m. to 2:00 p.m. Ms. Roney will send emails to Commissioners with directions to the public hearings.

 

PUBLIC EDUCATION MATTERS

Public Education and Communications Division Chief David Giannotti provided his report of public education division activities for July and August, 2010. He also updated the Commissioners on the status of the Annual Report and the Rulings. The Commission had no questions.

 

LEGAL DIVISION MATTERS

Town Clerks Participating in Own Elections

Ms. Roney presented a memorandum concerning advice being given to town clerks concerning participation in elections where the clerk is also on the ballot. Ms. Roney reviewed that advice and said she and Ms. Nober will be meeting with town clerks to discuss. She will provide an update to the Commission at a later date.

 

Legal Division Metrics

Ms. Roney presented the Legal Division metrics for July and August 2010. The division handled 44 staff letters and email requests in July and 39 in August; 291 phone calls in July and 290 in August; and 14 municipal counsel opinions in July and 5 in August. No opinion requests are older than 30 days, and there are 9 pending requests for advice.

Ms. Roney commended the staff in the Legal Division for their productivity given a significant increase in business activity. For FY 2010, approximately 5,500 inquiries were received by the Legal Division, compared to approximately 3,600 inquiries in FY 2009.

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.


Designation of Hearing Officers

Ms. Roney requested that the Commission assign hearing officers in the following new adjudicatory matters:

 

  1. In Re Louis Picano and In Re Daniel Dean: Commissioner Mangum was designated the hearing officer. Public Education Division Special Counsel Norah Mallam was assigned as the legal advisor;

  2. In Re Joseph Turner: Commissioner Veator was designated the hearing officer. Legal Division Deputy Chief David Wilson was assigned as the legal advisor; and

 

  1. In Re A. Joseph DeNucci: Commissioner King was designated the hearing officer. Legal Division Senior Staff Counsel Lauren Duca was assigned as the legal advisor.

 

Ms. Roney provided copies of Orders to Show Cause to the hearing officers for their respective matters.

 

Litigation Matters

Ms. Roney provided an update on the following litigation matters, a report of which is included in the packet:

 

  • 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; we are preparing a response.

 

  • Lincoln Smith v. Commonwealth: Chapter 30A appeal from the Commission's August 18, 2008 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. We are awaiting his brief.

 

  • Thomas Jefferson v. SEC: Chapter 30A appeal from the Commission's April 28, 2010 decision finding that he violated §§ 23(b)(2) and (3).

 

  • 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).

 

The Commission had no questions.

 

ENFORCEMENT DIVISION MATTERS

Enforcement Division Chief Stephen P. Fauteux reported that all Enforcement Division attorneys attended a five day trial advocacy class conducted by the Attorney General's Office. The class required much preparation work and advocacy practice and all participants found it to be extremely helpful.

Mr. Fauteux provided a report on FY 2010 Enforcement Division metrics. He said that productivity was up 70% from FY 2009, and timelines decreased by 40%, despite a 40% increase in the number of complaints received. Mr. Fauteux stated that, overall, he was very pleased with Enforcement Division productivity over the past fiscal year.

 

SFI MATTERS

Enforcement Division Deputy Chief Karen Gray presented a memorandum on a proposed new penalty schedule for SFI late filers. As proposed, this new schedule will go into effect for SFIs filed for calendar year 2010.

 

Proposed Penalty Schedule for Late SFI Filing

 

1-10 days late

$100

11-20 days late

$200

21-30 days late

$300

31-40 days late

$400

41-50 days late

$500

51-60 days late

$600

61-70 days late

$700

71-80 days late

$800

81-90 days late

$900

91-100 days late

$1,000

101- 110 days late

$1,100

111-120 days late

$1,200

121 days to the day before an Order to Show Cause is issued by the Enforcement Division of the Commission

$1,250

Date Order to Show Cause is issued to the day before Decision and Order issued by Commission

 

$2,500

Date Decision and Order is issued

Up to $10,000

 


Ms. Gray stated that the proposed penalty schedule will provide an incentive for filers to file on time, will reduce the amount of staff time needed to deal with late filers, and will, therefore, make the forms available to the public in a more timely manner.

After discussion by the Commission, on the motion of Commissioner Mangum, seconded by Commissioner Kempthorne, the Commission voted 5-0 to adopt the proposed penalty schedule for late-filing an SFI.

 

EXECUTIVE SESSION

At 10:59 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 subparagraph (a)(7) and G.L. c. 268B, sections 3 and 4. These matters will include preliminary inquiry reports and recommendations, closing memoranda, disposition agreements, public and private education letters, and advisory opinions.

 

VOTE: 

Chairman Swartwood                   yes

Commissioner Kempthorne           yes

Commissioner Veator                   yes

Commissioner King                      yes

Commissioner Mangum                yes

 

Chairman Swartwood stated that the Commission would reconvene in public session following the executive session.

 

PUBLIC SESSION

At 11:58 a.m, the Commission reconvened in public session to consider a draft Executive Director Performance Evaluation form and a draft revised Executive Director Position Description, and to discuss the professional competence of the Executive Director for purposes of preparing her performance evaluation. Present were Chairman Swartwood, Commissioner Kempthorne, Commissioner Veator, Commissioner King and Commissioner Mangum. General Counsel Deirdre Roney was also present.

 

Personnel

Chairman Swartwood stated that the Executive Director's performance was stellar, and that he approved the proposed Performance Evaluation form and Position Description. Commissioner Mangum stated that she was in favor of the proposed Position Description. Commissioner Kempthorne suggested that the proposed Position Description be revised to add the following first sentence: "The Executive Director reports to, and is responsible for implementing the directives of, the State Ethics Commission." Following discussion by the Commission, on the motion of Commissioner Kempthorne, seconded by Commissioner Veator, the Commission voted 5-0 to approve the proposed Position Description with Commissioner Kempthorne's revision.

The Commission proceeded to discuss the Executive Director's professional competence. Commissioner Kempthorne stated that the Executive Director had done a great job improving morale, which had been low in 2006-2007, focusing on efficiently managing personnel, and implementing the new legislation. Chairman Swartwood stated that the Executive Director had worked hard to get the new legislation done. Commissioner Mangum stated that she and Commissioner Veator had met with the General Counsel, Director of Communications, and Enforcement Division Chief to get feedback about the Executive Director. She further stated that they had heard uniformly positive comments about communications, management, and staff interaction. There has been an improvement in the agency culture. Commissioner Veator concurred with Commission Mangum's description of the feedback they received. Commissioner Kempthorne stated that the Executive Director had shown herself to have substantial depth and a nuanced understanding of both state government and the conflict of interest law, and that she was a great hire and is an asset to the Commission. Commissioner King stated that he agreed with the previous comments.

 

EXECUTIVE SESSION

At 12:24 p.m., on the motion of Chairman Swartwood, seconded by Commissioner Kempthorne, the Commission voted 5-0 to enter into executive session to discuss matters subject to the provisions of G.L. c. 30A, § 21(a)(2) and (7), G.L. c. 66, § 10, and G.L. c. 4, § 7, clause 26(c), for the purposes of preparing the Executive Director's performance evaluation, and to conduct a strategy session in preparation for negotiations with the Executive Director with respect to her employment contract.

 

VOTE:  

Chairman Swartwood                 yes

Commissioner Kempthorne        yes

Commissioner Veator                 yes

Commissioner King                    yes

Commissioner Mangum             yes

 

Chairman Swartwood stated that the Commission would reconvene in public session following the executive session.

 

PUBLIC SESSION

At 12:56 p.m., the Commission reconvened in public session. Present were Chairman Swartwood, Commissioner Kempthorne, Commissioner Veator, Commissioner King and Commissioner Mangum. General Counsel Deirdre Roney was also present.

 

Personnel

The Commission discussed the performance of the Executive Director. On the motion of Commissioner Veator, seconded by Commissioner King, the Commission voted 5-0 to defer further discussion concerning the Executive Director's contract, and to delegate to the Chair the authority to discuss her contract with her.

 

ADJOURNMENT

At 12:57 p.m., on the motion of Commissioner King, seconded by Commissioner Veator, the Commission voted 5-0 to adjourn.

 

VOTE: 

Chairman Swartwood                 yes

Commissioner Kempthorne         yes

Commissioner Veator                 yes

Commissioner King                    yes

Commissioner Mangum              yes

 

Respectfully submitted,


David Giannotti
Public Education and Communications Division Chief