MINUTES OF THE STATE ETHICS COMMISSION MEETING
January 21, 2011
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood, III called the meeting to order at 9:03 a.m. Also in attendance were Commissioners David L. Veator, Patrick J. King and Martin F. Murphy. Commissioner Paula Finley Mangum was absent.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner King, seconded by Commissioner Murphy, the Commission voted 4-0 to waive the reading and approve the public session and executive session minutes for the December 17, 2010 meeting.
EXECUTIVE DIRECTOR'S REPORT
Executive Director Karen L. Nober reported that the Governor should be releasing his budget proposal, House 1, next Wednesday, January 26, 2011, and that this will start the budget process.
Ms. Nober said that they will work with the Legislature regarding the Commission's FY 2012 budget and will be submitting a budget request to the legislature.
Open Meeting Law Review of Executive Session Meeting Minutes
Ms. Nober stated that she planned to conduct a review of the executive session meeting minutes every six months to comply with the Open Meeting Law. She explained that changes to the law went into effect on July 1, 2010 requiring a review of executive session meeting minutes to determine whether the minutes, or any portion thereof, could be released publicly. She has completed a review of the executive session minutes for the period July through December, 2010. She believes that the Commission's votes on disposition agreements that have been signed and released publicly, as well as matters involving the Executive Director's employment contract, could be released publicly. Public Education and Communications Division Administrative Assistant Carolyn Teehan will maintain a book with executive session minutes that Ms. Nober has determined may be released.
Ms. Nober reported that she is aware of two bills pending in the legislature that will affect the Commission. One bill was filed by Representative Peter Kocot at Ms. Nober's request which deals with employment classifications for agency staff. Co-sponsors for the bill will be sought, and it will then be assigned to a committee. The bill adds the Commission to the list of agencies exempted from the state's employee classification system.
The second bill was filed by Representative Carolyn Dykema and would require everyone who files an SFI to file electronically. The bill would also require that the Commission post SFIs online within three days of receipt. Ms. Nober explained that the current statute requires that the Commission notify filers if a copy of an SFI has been requested. Even if the notice requirement was eliminated, posting SFIs online within three days of receipt would not be feasible because the Commission is required to redact information before they can be released. The Commission requested a summary of other states' practices for SFIs. Ms. Nober also informed the Commission about media requests for SFIs. She said that staff will explore how to revise the SFI form to deal with the redaction requirements.
Conflict Law Education and Training Requirements
Ms. Nober presented a memorandum on how the agency plans to respond when it learns that public employees have refused to comply with the new requirements. Ms. Nober said that auditing public agencies for compliance would not be a good use of agency resources. The Enforcement Division will begin to check compliance of any public employee who is the subject of an investigation. Any lack of compliance can be factored into the resolution of a case. Chairman Swartwood asked about the status of improvements to the online training program. Ms. Nober stated that a workgroup has begun meeting to update the program and create municipal programs. She stated that she would like the Commission's External Relations and Technology Committee, chaired by Commissioner King, to meet to consider the proposed updates when they are ready.
Academy for Legislative Staff
Ms. Nober said that she would be presenting information on the conflict law to new legislative staff at a Suffolk University program for new legislative staff.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, February 18, 2011 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 December, 2010. He explained that an increase in visitors to the website in December may be attributed to public agencies' efforts to comply with the conflict law education requirements to distribute the summaries, and also due to many calls to the agency concerning teacher gifts and the new regulations that went into effect on December 10, 2010.
General Counsel Deirdre Roney explained that callers expressed some confusion about the section 23 disclosure requirement on gifts that may be valued at less than $50, depending on the circumstances.
Ms. Nober said she would like to revisit with the Commissioner her proposal to include information on disclosures filed with the Commission each month on the website.
LEGAL DIVISION MATTERS
Legal Division Metrics
Ms. Roney presented the Legal Division metrics for December 2010. The division handled 40 staff letters and email requests for written advice; 442 telephone or walk-in contacts in which oral advice was provided; and reviewed 1 municipal counsel opinion. Thirteen opinion requests for written advice are older than 30 days, and 33 requests for written advice are pending.
The Commission had no questions.
Ms. Roney stated that the new regulations went into effect on December 10, 2010. Most questions about the regulations concern teacher gifts.
Revised Draft Political Activity Advisories
Legal Division Deputy Chief David Wilson presented revised drafts of the Political Activity advisories. After discussion by the Commission, the drafts will be further revised and presented for review by the Commission at the February meeting.
Revised Form Scheduling Order and Electronic Filing Manual
Ms. Roney presented a revised Form Scheduling Order and Electronic Filing Manual for the Commission's review. After discussion by the Commission, on the motion of Commissioner Veator, seconded by Commissioner Murphy, the Commission voted 4-0 to approve the revised documents.
Draft Advisory on Recommendations for Employment by Public Employees
Ms. Roney presented a draft advisory opinion for the Commission's review. She stated that the Legal Division has been getting requests for advice from public employees on providing letters of recommendation to both public and private entities. After discussion by the Commission, Ms. Roney will research federal law in this area and report back to the Commission at the February meeting.
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 hearing officers in 3 new adjudicatory matters. After discussion by the Commission, Commissioner Murphy was designated the hearing officer in In Re Paul Truehart, Chairman Swartwood was designated the hearing officer in In Re William Schmidt, and Commissioner Veator was designated the hearing officer in In Re Robert Fortes.
Ms. Roney provided an update on the following litigation matters:
A. John F. Scott v. Commonwealth. Docket No. NOCV2009-01819. Chapter 30A appeal from the Commission's October 8, 2009 decision finding that Scott violated §3(a). Judge Brady denied plaintiff's motion for judgment on the pleadings and upheld the Commission's decision on December 16, 2010. We are awaiting a decision by Scott on whether he will attempt a further appeal.
B. Lincoln Smith v. Commonwealth. Docket No. SUCV2008-04111-C. Chapter 30A appeal from the Commission's August 18, 2008 decision finding Smith 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. He has not done so, and the clerk's office has indicated that the court will likely dismiss the matter soon. If they don't, we will move to dismiss.
C. Thomas Jefferson v. SEC. Docket No. SUCV2010-02009-C. Chapter 30A appeal from the Commission's April 28, 2010 decision finding that Jefferson violated §§ 23(b)(2) and (3). The record has been filed. Jefferson's motion to include in the record evidence not before Commission was recently denied. We have received Jefferson's motion for judgment on the pleadings and are preparing a response, which is due to be filed on February 4, 2011, with argument scheduled for March 4, 2011.
D. Theresa Lord Piatelli v. SEC. Docket No. SUCV2010-02123-B. Chapter 30A appeal from the Commission's April 26, 2010 decision finding that Piatelli violated §§ 17 and 23(b)(2). The record was filed January 5, 2011. Piatelli's motion for judgment on the pleadings will be due 30 days thereafter absent any requests for an extension.
The Commission had no questions.
Ware Report on the Probation Department
Ms. Roney reported that the Supreme Judicial Court granted the Commission's motion to modify the impoundment order to allow the Commission to be provided with the confidential exhibits filed with the Report. The decision does not extend to the full transcripts of interviews currently in Mr. Ware's possession, or the other materials that are the background for the report but that were not transmitted to the Court. The Commission's motion for access to everything in Mr. Ware's possession, in particular the complete interview transcripts, is pending.
At 10:37 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Veator, the Commission voted 4-0 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. Chairman Swartwood stated that these matters will include preliminary inquiry reports and recommendations, summons authorization requests, closing memoranda, disposition agreements, public and private education letters and advisory opinions.
VOTE: Chairman Swartwood yes
Commissioner Veator yes
Commissioner King yes
Commissioner Murphy yes
Chairman Swartwood stated that the Commission would not reconvene in public session following the executive session.
LIST OF DOCUMENTS USED FOR THIS MEETING
- Agenda for Meeting of January 21, 2011.
- Minutes of the State Ethics Commission Meeting for December 17, 2010, Public Session and Executive Session.
- Memorandum of Karen L. Nober, dated January 13, 2011, concerning enforcement of education and training requirements.
- Memorandum of David Giannotti dated January 13, 2011, concerning Public Education and Communications Division activities for December 2010.
- Memorandum of Deirdre Roney to the Commission dated January 13, 2011 setting forth Legal Division matters for meeting.
- Draft Advisory 10-2: Elected Public Employees and Election-Related Political Activity.
- Draft Advisory 10-3: Appointed Public Employees and Election-Related Political Activity.
- Draft Advisory 10-4: Political Activity of Elected and Appointed Public Employees Not Involving Elections.
- Revised Form Scheduling Order.
- Revised Electronic Filing Manual.
- Draft Advisory on Recommendations by Elected Public Employees of
their Constituents for Employment.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending
Commission Adjudicatory Proceedings.
- Legal Division Monthly Pending Adjudicatory Proceeding Status
Public Education and Communications Division Chief