MINUTES OF THE STATE ETHICS COMMISSION MEETING
March 18, 2011
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood called the meeting to order at 9:00 a.m. Also in attendance were Commissioners David L. Veator, Patrick J. King, Paula Finley Mangum and Martin F. Murphy.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner King, seconded by Commissioner Veator, the Commission voted 5-0 to waive the reading and approve the public session and executive session minutes for the February 18, 2011 meeting.
EXECUTIVE DIRECTOR'S REPORT
Executive Director Karen L. Nober reported to the Commission that she and Director of Budget and Administration Michael Memmolo attended the Joint Committee on Ways and Means hearing in Brockton on February 25, 2011. Ms. Nober testified at the hearing, and her testimony was reported in the media, with supportive comments from Pam Wilmot of Common Cause.
Ms. Nober said that she and Mr. Memmolo also met with House Ways and Means Committee Chair Representative Brian Dempsey the previous week to discuss the Commission's budget. She asked him to consider restoring the 2% cut in the Governor's budget. Ms. Nober and Mr. Memmolo will meet with Senate Ways and Means Committee Chair Senator Stephen Brewer sometime in the next week. Ms. Nober said that if the budget cut is not restored, she will look to avoid cuts in personnel, and instead aggressively look for ways to save in the Commission's operating budget.
Legislator Training Sessions
Ms. Nober stated that she and General Counsel Deirdre Roney have met with legislators to conduct training on the conflict law. They conducted one session for Senators and two for House members, with a final one for House members scheduled to occur in a week. They reviewed the changes in the law particularly pertinent to legislators, including the new regulatory exemptions, during these sessions.
Ms. Nober reviewed the status of th bill filed by Representative Peter Kocot on the Commission's behalf to exempt Commission employees from the state classification system, and the bill filed by Representative Carolyn Dykema to require electronic filing of SFIs and online posting of SFIs within three days of filing. Both bills were referred to the Joint Committee on State Administration and Regulatory Oversight, co-chaired by Representative Kocot and Senator Kenneth Donnelly. Ms. Nober plans to meet with Representative Dykema concerning the SFI legislation.
Ms. Nober stated that all changes to the SFI form and instructions had been completed, and SFI filing season has begun. She informed the Commission that there was a major issue that prevented email notifications from being sent through the SFI electronic filing application. We engaged our vendor and, along with Commission staff and staff from the state Information Technology Division, resolved the problem. The issue was found to be with ITD and not with the application. Ms. Nober noted that both David Giannotti and Tony Webb did a terrific job in getting this problem resolved.
External Relations and Technology Committee
Ms. Nober stated that the meeting of the External Relations and Technology Committee scheduled for Friday, April 15, 2011 would have to be rescheduled, and a new date would be selected at the end of the Commission meeting. Commissioner King chairs the committee, and Chairman Swartwood and Ms. Nober serve on the committee.
Advisory on Job Recommendations by Public Employees
Ms. Nober stated that stated that meetings will be set up with affected stakeholders to obtain their feedback on the draft advisory. Ms. Nober said she would include a statement in the advisory to the effect that an elected body can implement more stringent requirements than what is set forth in the advisory.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, April 15, 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 February, 2011. He stated that the 2010 Rulings have been issued, and publications are now current. He thanked Public Education Division Special Counsel Norah Mallam for her efforts in drafting the 2010 Rulings. Mr. Giannotti provided an update on the development of new online training programs and a liaison training program.
LEGAL DIVISION MATTERS
Legal Division Metrics
Ms. Roney presented the following Legal Division metrics for February 2011.
- Written advice. The Legal Division answered by letter or email 36 written requests for advisory opinions.
For comparison: 2008 monthly average (pre Ethics Reform): 31
2010 monthly average (post Ethics Reform): 52
- Oral advice. The Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 361 persons.
For comparison: 2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
- Review of municipal letters. The Legal Division reviewed 2 letters issued by city solicitors/town counsel pursuant to G.L. c. 268A, § 22 and 930 CMR 1.03.
For comparison: 2008 monthly average (pre Ethics Reform): 6
2010 monthly average (post Ethics Reform): 8
- Backlog. As of March 10, 2011, there were 3 pending requests for written advice that were more than 30 days old, all from January 2011. There were a total of 18 pending requests for written advice.
The Commission had no questions.
Ms. Roney provided an update on the following litigation matters:
- John F. Scott v. Commonwealth. NOCV2009-01819. Chapter 30A appeal from the Commission's 10/8/09 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, and judgment entered the same day. Scott's time to appeal expired on February 16, 2011. The Legal Division will follow up with Scott regarding the payment of the civil penalty imposed by the Commission.
- Lincoln Smith v. Commonwealth. SUCV2008-04111-C. Chapter 30A appeal from the Commission's 8/18/08 decision finding Smith violated § 23(b)(2). Smith appealed from Judge Cratsley's 4/30/10 decision upholding the Commission's decision. On October 6, 2010, the Appeals Court issued an order staying the matter until November 15, 2010, when Smith was required to file a status report on whether he had found new counsel. He did not file his status report. On February 16, 2011, the Appeals Court issued an order giving Smith 14 days to file a motion to enlarge to a date certain for serving and filing his brief and appendix as well as an affidavit from him or his attorney setting forth all the facts which he wishes to have considered by the Single Justice who will act on his motion. If he fails to timely file those materials, the Appeals Court will dismiss his appeal for failure to prosecute.
- Thomas Jefferson v. SEC, SUCV2010-02009-C. Chapter 30A appeal from the Commission's April 28, 2010 decision finding that Jefferson violated §§ 23(b)(2) and (3). The case was argued March 4, 2011, before Judge Cratsley, who reserved decision.
- Theresa Lord Piatelli v. SEC, 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 of the case was filed on January 5, 2011. Piatelli's motion for judgment on the pleadings will be due 30 days thereafter; she has neither made such a motion nor requested an extension.
- Ware Report on Probation Department. Justice Cordy authorized the Commission to have access to the full transcripts of interviews conducted by Mr. Ware's possession, and Mr. Ware provided them.
- U.S. v. DiMasi et al. The Boston Globe newspaper filed a motion to intervene in this case and to vacate the protective order which currently forbids defense counsel from disclosing materials obtained from the U.S. Attorney as part of pretrial discovery. If granted, this would give the Globe access to, among other things, audio files of witness interviews that we made available to the U.S. Attorney. The Legal Division opposed the Globe's motion. The matter was argued before Judge Wolf on March 9, 2011, and he denied the Globe's motion in pertinent part.
Revised Advisory 11-1: Public Employee Political Activity
Ms. Roney and Legal Division Deputy Chief David Wilson presented a revised Advisory 11-1: Public Employee Political Activity. After discussion by the Commission, on the motion of Commissioner Veator, seconded by Commissioner Mangum, the Commission voted 5-0 to approve the Advisory as amended during the discussion.
Draft Advisory 11-2: Recommendations for Employment by Elected Officials
Ms. Roney presented a revised draft advisory for the Commission's review. After discussion by the Commission, a revised draft will be shared with interested parties and presented for review, with their comments, by the Commission at the April meeting.
Form Scheduling Order and Electronic Case Filing Manual
Ms. Roney presented minor edits to the Form Scheduling Order and Electronic Case Filing Manual. The Commission had no questions. No action by the Commission was required.
Ms. Roney presented the calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings. The Commission had no questions.
At 9:50 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. 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 Mangum 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 March 18, 2011.
- Minutes of the State Ethics Commission Meeting for February 18, 2011, Public Session and Executive Session.
- Memorandum of David Giannotti, dated March 10, 2011, concerning Public Education and Communications Division activities for February 2011.
- Memorandum of Deirdre Roney to the Commission, dated March 10, 2011 setting forth Legal Division matters for meeting.
- Draft Advisory 11-1: Political Activity of Public Employees.
- Draft Advisory 11-2: Recommendations for Employment by Elected Officials.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
Public Education and Communications