MINUTES OF THE STATE ETHICS COMMISSION MEETING
September 16, 2011
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood, III called the meeting to order at 9:00 a.m. Also in attendance were Commissioners David L. Veator, Paula Finley Mangum and Martin F. Murphy. Commissioner Patrick J. King was absent.
APPROVAL OF MEETING MINUTES
Commissioner Murphy reported an error in the draft minutes of the Commission’s executive session meeting on August 15, 2011. The name of the high school he attended should be changed from “Pawtucket” to “Pentucket.” On the motion of Commissioner Mangum, seconded by Commissioner Veator, the Commission voted 4-0 to waive the reading and to approve the public session and executive session minutes, as amended, for the July 15, 2011 and August 15, 2011 meetings.
EXECUTIVE DIRECTOR’S REPORT
Executive Director Karen L. Nober reported to the Commission that the performance evaluations for the staff for the past year have been completed.
She also reported that she has promoted Lauren Duca from Senior Staff Counsel to the newly created position of Deputy Chief/SFI in the Legal Division. In her new position, Ms. Duca will manage the Commission’s SFI functions, supervise David Mesquita, the Commission’s Financial Analyst, create a procedures manual, identify areas where changes can be made to promote efficiencies, and implement changes, as appropriate, and oversee the process to revise and shorten the SFI form. Ms. Nober noted that Mr. Mesquita has done a very good job handling an enormous amount of work in the SFI Division.
Ms. Nober informed the Commission that a half-time receptionist position was posted on September 6, 2011. Applications are due September 23, 2011. As of September 15, 2011, the Commission has received 69 applications. Ms. Nober reported that she has also changed the reporting structure for the receptionist position. Instead of reporting to her, the receptionists will now report to Chief Financial Officer/Director of Budget and Administration Michael Memmolo.
Ms. Nober reported that the Commission’s spending plan for FY 12 has been submitted to the Executive Office for Administration and Finance. The budget process for FY 13 has not yet begun.
Ms. Nober informed the Commission that the state has negotiated a new contract with the state employee union, NAGE, which will affect fifteen of the Commission’s employees. The new contract gives union employees a 3% raise on June 30, 2012, with additional increases of 1.5% scheduled for July 1, 2012, January 1, 2013, July 1, 2013 and January 1, 2014. She stated that these increases will create some budget issues. In addition, Ms. Nober reported that the new contract gives union employees an increase in personal days in calendar year 2012 from three to five and eliminates the Evacuation Day and Bunker Hill holidays. She stated that for reasons of fairness, she intends to make the same change in personal days for the Commission’s non-union employees.
Ms. Nober reported that she and General Counsel Deirdre Roney are planning to attend the COGEL conference to be held in Nashville in December. In order to reduce the cost, they will attend only from Sunday to Tuesday. The cost will be approximately $2,000.
Translation of Summaries
Ms. Nober informed the Commission that the cost to translate the summaries of the conflict of interest law into Spanish and Portuguese will be $2,400. Ms. Nober recommended that the Commission undertake the translations as a customer service because the summaries are required by law, it is not a significant amount of money and the Commission has been asked to do so by many of the municipalities.
Open Meeting Law
Ms. Nober reported that the Attorney General’s Office has issued proposed regulations that would allow board members to participate remotely in meetings. She stated that Ms. Duca prepared comments on the proposed regulations that were submitted to the Attorney General’s Office on behalf of the Commission and testified at the public hearing on the proposed regulations. Ms. Nober noted that the comments focused on two major issues. The first issue was who can determine whether to allow a board to use remote participation. Under the proposed regulations, the appointing authority for the majority of the board members, the Governor in the Commission’s case, would make the decision. The comments requested that the proposed regulation be revised to allow the decision to be made by the board itself. The second issue was the permissible reasons for use of remote participation. Ms. Nober noted that the proposed regulations contain a list of permissible reasons for using remote participation. The comments included a request that this section be deleted as unnecessary in light of the protections already in place in the Open Meeting Law, including the requirement that the chair be physically present at the meeting location.
Ms. Nober informed the Commission that Senate Counsel Alice Moore will be teaching a Political Ethics class at Emerson College this fall. Ms. Moore will have a series of guest speakers from government. She has asked Ms. Nober to speak. Ms. Nober said she will be a guest lecturer at one of the classes in October and is considering speaking on the topic of patronage.
Enforcement Committee Meeting
Ms. Nober reported that the minutes of the Enforcement Committee meeting held on July 15, 2011, were included in the Commission’s packet for informational purposes. No action was required by the Commission.
Expiration of Commissioner Veator’s Term
Ms. Nober informed the Commission that Commissioner Veator’s term will expire on October 11, 2011. Ms. Nober has had a number of conversations with the Governor’s Chief Legal Counsel Mark Reilly regarding a new appointment. The Governor’s Office is aware of the need for a new Commissioner, and the search for a replacement is in process. Commission Veator has agreed to hold over and attend the October 14, 2011 meeting. Ms. Nober stated that she is in the process of planning a luncheon to thank Commissioner Veator for his service to the Commission.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, October 14, 2011 at 9:00 a.m.
PUBLIC EDUCATION DIVISION MATTERS
The Commission meeting materials included a memorandum from Public Education and Communications Division Chief David Giannotti reporting on public education division activities for July and August 2011. There were no questions.
ENFORCEMENT DIVISION MATTERS
Proposed Amendment to Enforcement Procedures
Enforcement Division Chief Stephen P. Fauteux discussed his memorandum requesting a proposed amendment to § 7(A) of the Enforcement Procedures regarding the signing of summonses that have been authorized by prior Commission vote. Under the current Procedures, a summons may be signed by the Executive Director or the Chief of the Enforcement Division. The proposed amendment would make a change to authorize the Enforcement Division Deputy Chief to sign summonses and in the event that both the Chief and the Deputy Chief are unavailable, to allow the Executive Director to sign.
Mr. Fauteux stated that the purpose of the proposed amendment is to address situations when a summons needs to be signed and neither the Enforcement Division Chief nor the Executive Director is available to do so. He further stated that signing by the Executive Director would be a default position used only when the Enforcement Division Chief and Deputy Chief are not available. Ms. Nober stated her preference that an individual from the Enforcement Division sign a summons instead of the Executive Director. The Commission indicated its agreement with Ms. Nober’s position. After discussion by the Commission, on motion by Commissioner Veator, seconded by Commissioner Murphy, the Commission voted to amend § 7(A) of its Enforcement Procedures to read as follows:
The Commission may authorize the issuance of summonses for investigative purposes, pursuant to § 4 of c. 268B. Investigative summonses may be authorized in the course of any preliminary inquiry upon majority vote of the Commission. Summonses authorized by the Commission will be signed by the Chief or the Deputy Chief of the Enforcement Division and will be served in the same manner as summonses for witnesses in civil cases.
VOTE: Chairman Swartwood yes
Commissioner Veator yes
Commissioner Mangum yes
Commissioner Murphy yes
Proposed Amendment of Deferral Policy
Mr. Fauteux discussed his memorandum recommending various amendments to the Commission’s policy regarding deferring to other agency action as to G.L. c. 268A violations. His recommendations include giving the Enforcement Division Chief the discretion to determine whether, and to what extent, documents should be pursued before suspending an investigation post-indictment, to provide explicitly that the Enforcement Division Chief has the authority on his own initiative to put cases on hold after receiving a pre-indictment request by criminal agencies to defer to their investigations and to include a requirement that when a screening or preliminary inquiry is put on hold, the Enforcement Division must have an investigative plan ready to be implemented when, and if, its investigation is resumed. Suggestions were made by the Commission to expand the reference to “Criminal Law Enforcement Agency Investigation” to include “or Proceeding” in the title and throughout the policy. The Commission discussed the proposed recommendation to allow the Enforcement Division Chief to put a case on hold on his own initiative and then report it to the Commission. After discussion, Mr. Fauteux stated that he will revise the deferral policy to address the Commission’s comments and bring it back to the Commission for its review at the next meeting.
Enforcement Division Metrics: FY 11 Division Metrics
Mr. Fauteux discussed his memorandum providing the Enforcement Division’s metrics for FY 11. He stated that the Enforcement Division’s productivity was consistent with its prior five year average. Mr. Fauteux also stated that he is most pleased that the time to complete preliminary inquiries has been reduced from sixteen months to eleven months. Chairman Swartwood inquired about Mr. Fauteux’s reference to an outlier. The Commission had no other questions.
LEGAL DIVISION MATTERS
Legal Division Metrics
Ms. Roney presented the Legal Division’s metrics for July and August 2011. She noted that she was pleased with the metrics in light of the fact that the Legal Division has not been fully staffed since April 2011. The Commission had no questions.
Adjudicatory Matters: Schedule
Ms. Roney presented the calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings. The Commission had no questions.
Litigation Matters: Litigation Status Update
Ms. Roney provided an update on the status of pending litigation.
- Thomas Jefferson v. SEC, SUCV2010-02009-C. In a Memorandum and Order dated April 19, 2011, Judge Cratsley upheld the Commission’s decision. Jefferson decided not to appeal and has paid his fine. Ms. Roney reported that the payment plan proposed by Paul Wormser, which is being discussed, is not consistent with the Commission’s policy.
- Theresa Lord Piatelli v. SEC, SUCV2010-02123-B. Chapter 30A appeal from the Commission’s 4/26/10 decision finding that Piatelli violated §§ 17 and 23(b)(2). Piatelli’s motion for judgment on the pleadings was fully briefed. Ms. Roney stated that Staff Counsel Amy Bressler Nee did a good job at the hearing on the motion for judgment on the pleadings that was held before Judge Giles on September 14, 2011.
Update on Unpaid Fines
Ms. Roney reported that since this subject was last discussed with the Commission, Thomas Jefferson and Maureen Brennan have paid their fines. She noted that six cases remain where fines are unpaid. In two of those cases, the respondents have requested payment plans, which requests are being negotiated to determine whether a payment plan is acceptable to the Commission. In the other four cases, the notices required by the Comptroller prior to invoking the automatic intercept and debt collection process are being sent out. Ms. Roney noted that Mr. Memmolo has done a good job setting up the procedure for those notices.
Update on Court Reform Act
Ms. Roney reported to the Commission regarding the Court Reform Act, Chapter 93 of the Acts of 2011, which was signed by the Governor on August 4, 2011. The Act includes sections pertinent to the Commission with respect to the application process for state employment and recommendations for public employment.
Ms. Roney stated that Section 118 of the Act amended G.L. c. 268A by adding a new § 6B requiring that every candidate for employment by the state, as part of the application process, must disclose in writing the names of any state employee who is related to the candidate as a spouse, parent, child or sibling or the spouse of the candidate’s parent, child or sibling. She stated that the Commission’s practice has not been to have everyone who has applied for a position fill out an application unless they make it through the first review. Ms. Roney suggested that the Commission consider drafting a regulation to interpret § 6B as to when such information must be provided. She stated that she will consult with other agency counsel about their application and hiring policies.
Ms. Roney also noted that in light of the Act, the prior draft advisory on recommendations for employment will need to be reviewed. In particular, she stated that because the prohibition against oral recommendations was deleted from the Act, it no longer appears that oral recommendations may be considered unwarranted for purposes of § 23(b)(2). Ms. Roney informed the Commission that the draft advisory will be reviewed by the Legal Division, revised as necessary and brought to the Commission for its review at the next meeting.
General Counsel Roney’s Trip to Rostov-on-Don, Russia
Ms. Roney reported that from September 17-26, 2011, she will be part of an American delegation visiting Rostov-on-Don, Russia as part of a project funded by the U.S. State Department to encourage development of the rule of law in Russia by increasing knowledge among Russian legal professions of the American legal system. She stated that she will be looking at the court system. The Commission wished Ms. Roney well on her trip.
At 9:38 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, § 21, subparagraph (a)(7) and G.L. c. 268B, §§ 3 & 4. Chairman Swartwood stated that these matters will include preliminary inquiry recommendations and reports, summons authorization requests, closing memoranda, disposition agreements, public and private education letters and advisory opinions.
VOTE: Chairman Swartwood yes
Commissioner Veator yes
Commissioner Mangum yes
Commissioner Murphy yes
Chairman Swartwood stated that the Commission will not reconvene in public session after the executive session.
LIST OF DOCUMENTS USED FOR THIS MEETING
- Meeting Agenda Memorandum dated September 9, 2011, from Karen L. Nober, Executive Director, to Commission.
- Minutes of the State Ethics Commission Meeting for July 15, 2011 Public Session and Executive Session.
- Minutes of the State Ethics Commission Meeting for August 15, 2011 Public Session and Executive Session.
- Minutes of the Meeting of the Enforcement Committee of the State Ethics Commission meeting on July 15, 2011.
- Memorandum dated September 8, 2011, from David Giannotti to the Commission regarding the Public Education and Communications Division report.
- Memorandum dated September 8, 2011, from Stephen P. Fauteux to the Commission regarding the amendment to the Enforcement Procedures.
- Memorandum dated September 8, 2011, from Stephen P. Fauteux to the Commission regarding the Commission’s Deferral Policy with attachment.
- Memorandum dated September 8, 2011, from Stephen P. Fauteux to the Commission regarding Enforcement metrics as of June 30, 2011, with attachments.
- Memorandum dated September 8, 2011, from Deirdre Roney to the Commission setting forth Legal Division matters for meeting.
10. Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission adjudicatory proceedings.
Lauren E. Duca
Deputy Chief/SFI, Legal Division