MINUTES OF THE STATE ETHICS COMMISSION MEETING
May 18, 2012
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 Patrick J. King, Paula Finley Mangum, Martin F. Murphy and William J. Trach.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner King, seconded by Commissioner Murphy, the Commission voted 4-0, with Commissioner Swartwood abstaining, to waive the reading and approve the public session and executive session minutes for the April 20, 2012 meeting.
The public and executive session minutes of the Enforcement Committee meeting of April 30, 2012 were provided to the Commission. Chairman Swartwood asked that Commissioner Murphy’s name be added to the preamble on page 1 of the Committee’s Executive Session meeting minutes. Executive Director Karen L. Nober stated that she will make the requested change.
No action by the Commission was required.
EXECUTIVE DIRECTOR'S REPORT
Ms. Nober thanked Deputy Chief/SFI Lauren E. Duca for taking the meeting minutes in the absence of Public Education and Communications Division Chief David Giannotti.
Ms. Nober noted that a telephone was placed on the table in order to allow Legal Division Staff Counsel Amy Bressler Nee, who was in her office, to hear the discussion at the meeting. Ms. Nee was physically unable to attend the meeting due to an allergic reaction to the new carpeting in the meeting room.
Ms. Nober stated that CFO/Director of Budget and Administration Michael Memmolo arranged to have the carpeting replaced at no cost to the Commission because a number of the tiles were defective and had pulled up from the floor, creating a tripping hazard.
Ms. Nober noted some changes she had made to the organization of the meeting materials.
Commissioner King inquired whether it was possible to have the monthly packet materials sent electronically to any Commissioner interested in receiving it in that form. General Counsel Deirdre Roney stated that doing so would be permissible. Chairman Swartwood noted that receiving the materials electronically should be at the option of each Commissioner. Ms. Roney stated that the monthly packet materials will now be sent electronically to Commissioner King as well as any Commissioner who wants to receive them that way.
Ms. Nober reported that the Commission has hired Robert Milt as the new SFI Financial Disclosure Administrator and Analyst. She noted that Mr. Milt has strong government experience, most recently in the State Senate. He will begin on June 4, 2012, and will work in the Legal Division, reporting to Ms. Duca.
Ms. Nober stated that she would be starting the process for the annual performance evaluations in June. Chairman Swartwood designated Commissioner Mangum and Commissioner Trach to prepare the initial draft of the Executive Director’s performance evaluation.
Ms. Nober reported that the House of Representatives released a budget that level-funded the Commission. Representative Kocot filed a budget amendment on behalf of the Commission in the amount of $200,000. The House subsequently approved a budget amendment in the amount of $47,000, which she noted was the amount requested by the Commission to cover collective bargaining increases. Ms. Nober stated that the Senate just released its budget, which matched the House budget, thereby eliminating the need for the Commission to seek a budget amendment or to have its budget go to a conference committee.
Ms. Nober reported that she and Mr. Memmolo met with the Senate Ways & Means Budget Director and the Commission’s Senate Budget Analyst to discuss our need for an additional staff member for the Public Education Division and our potential need for funding for the costs associated with the online training program depending on whether we can use HRD’s PACE learning management system. She stated that the Commission may pursue additional funding in a supplemental budget.
Ms. Nober stated that Mr. Giannotti, who is on vacation, included information in his memorandum to the Commission discussing the status of the online training programs. She reported that there have been some positive signs from HRD regarding the ability to use the PACE learning management system to load the Commission’s online training programs. Ms. Nober stated that Mr. Giannotti will follow up on this issue when he returns. She noted that the state-county online training program has been completed and the municipal online training program is continuing to be tested.
Ms. Nober thanked the Legal Division, Information Technology Specialist Tony Webb, Administrative Assistants Carolyn Teehan and Theresa Meli Omodei and Mr. Giannotti for their work on Statement of Financial Interests (SFI) matters during the current SFI filing season. She noted the high volume of telephone calls and inquiries received from filers.
Enforcement Committee Meeting
Ms. Nober reported that the Enforcement Committee met on April 30, 2012. She referred the Commission to the minutes and the memoranda in the packet materials concerning that meeting. Ms. Nober stated that the memoranda, which were originally submitted to the Committee, were revised to reflect the Committee meeting discussion. She further stated that Commissioner Murphy, as Committee Chairman, would be providing a report to the Commission about the meeting.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, June 15, 2012 at 9:00 a.m.
PUBLIC EDUCATION MATTERS
Ms. Nober stated that Mr. Giannotti’s memorandum reporting on the public education division activities for April 2012 was included in the meeting packet materials.
The Commission had no questions.
Ms. Duca reported that the end of the SFI filing season for calendar year 2011 was near; the filing deadline for designated public employees, May 1, 2012, had already passed and the filing deadline for public officials is not until May 29, 2012. She described the efforts taken to encourage filers to file in a timely manner.
Ms. Duca reported that approximately 535 designated public employees missed the May 1st filing deadline. Formal Notices of Lateness, which are required by G.L. c. 268B, § 3(f) to be sent to non-filers, and which provide a non-filer with an additional ten days to file an SFI without incurring a civil penalty, were sent on May 7, 2012 (to electronic filers) and on May 8, 2012 (to manual filers). As of midnight on May 17th, the number of non-filers was reduced to 96, which number included manual filers who still had time to file. She stated that calls would be made to the General Counsels for agencies that had non-filers in order to get people to file and to remind them that G.L. c. 268B, § 5(e) prohibits a public employee from continuing in his duties or receiving compensation from public funds until he has filed an SFI.
Ms. Duca noted a variety of problems experienced with the SFI electronic filing system. She stated that those problems are in the process of being reviewed and addressed.
The Commission had no questions.
Enforcement Division Chief Stephen P. Fauteux provided a memorandum to the Commission on Enforcement Metrics as of March 31, 2011.
The Commission had no questions.
LEGAL DIVISION MATTERS
Proposed Amended Commission Regulations
Ms. Roney presented proposed draft amended regulations as well as new proposed regulations for the Commission’s review. She discussed her memorandum that (1) responded to questions the Commission asked the staff to answer about the draft amendments during its April 20, 2012 meeting, (2) presented a comprehensive list of all the draft amendments, including those approved in July 2011, those made as the result of public comment and considered by the Commission at its April 20th meeting and those requested as its April 20th meeting and (3) provided an explanation of the reasons for those amendments. Ms. Roney also provided the Commission with a complete set of the proposed draft amended regulations.
1. 930 CMR 1.01(4)(g)2. Amendments permit respondent to be served by regular mail if he or she has not provided an email address, and allow documents
not required to be filed to be served electronically.
2. 930 CMR 1.01(6)(a) and (c)1. Amendments add requirement that oppositions to motions be filed within 7 days of motion, and permit motions to dismiss
to be made for failure of the Order to Show Cause to state a claim upon which relief may be granted. Also eliminate reference here to motions at end of
Petitioner’s case, and move it to 1.01(10)(f).
Chairman Swartwood asked that the reference to 20 pages in the proposed amended regulation, 930 CMR 1.01(6) (a), be revised to refer to 20 pages double spaced.
3. 930 CMR 1.01(7)(b), (c) and (d). Amendments require that responses to requests for documents be served within 14 days of receipt and interrogatory
responses be served within 21 days of receipt, if that is earlier than the time required by the scheduling order; if the scheduling order requires an earlier
response, then that earlier time controls. Requirement of notice of deposition is on party seeking deposition rather than presiding officer. Allow documents
to be produced electronically in discovery.
4. 930 CMR 1.01(10)(c)1. Amendment simplifies language with respect to designation of statements by party-opponent for use at hearing.
5. 930 CMR 1.01(10)(f). Amendment moves provision concerning motions to dismiss at the end of Petitioner’s case here from 1.01(6)(c)1, as a more
logical place for this provision than in the section governing pre-hearing motions to dismiss.
6. 930 CMR 1.01(10)(g)2. Amendment conforms regulatory language with respect to admissibility of evidence to G.L. c. 30A.
7. 930 CMR 1.01(10)(l)2. Amendment provides for certification of record by Presiding Officer.
8. 930 CRM 1.02(8)(f). Amendment clarifies how statute of limitations applies to situations where there is a pattern or course of continuing conduct, some of
which occurs more than six years before the Commission learns of the alleged violation.
9. 930 CMR 2.05. Amendment requires that hiring agency give new employees notice of the requirement that they file an SFI, and copy us on the notification.
10. 930 CMR 3.01(8)(c). Amendment clarifies language with respect to Enforcement’s ability to use against respondent any type of Commission advice that
the respondent has disregarded, regardless of the form of the advice or who provided it, and states explicitly that no attorney-client relationship is created
with requestor when staff provide legal advice.
11. 930 CMR 3.02 (new). Specifies procedure when a disclosure will contain information required by law to be kept confidential, as described
above. Reference to this section has been added to 5.04 and 6.01(6), which define the term “disclosure” for purposes of the exemption regulations.
Ms. Roney stated that this new regulation was an attempt to balance the legal requirement of confidentiality with the need for a public record. She noted that the procedure in the proposed regulation that requires the public employee to provide a redacted version of the written disclosure which would be a public record, would serve as a “check” on the public employee’s behavior without making confidential information public.
Commissioner Trach inquired about how to make agencies aware that a confidential disclosure made by a public employee under this proposed new regulation cannot be made public and must be kept confidential. Ms. Roney stated that information about this new requirement would be placed on the Commission’s website and that the form for the confidential disclosure would include a statement that it must be kept confidential.
12. 930 CMR 5.04. Amendment moves definition of “disclosure” to section on definitions. Clarifies how disclosures should be made when there is no
appointing authority. Includes “class” and “team” in the definition of “person.”
13. 930 CMR 5.07 and 5.08 with respect to lobbyists. Amendment adds clarifying language about the zero-tolerance rule for lobbyist gifts (which applies to
elected and policy-making public employees, not all public employees) to Sections 5.07 and 5.08(1) through (4), (6), (9), (10), and (13).
14. 930 CMR 5.08(2). Amendment clarifies that travel paid for by foreign governments must be disclosed, and that it does not fall under the exemption for
travel paid for by domestic public agencies, where no disclosure is needed. Adds tribes to domestic agencies from which paid-for travel may be
accepted without disclosure.
Ms. Roney stated that this regulation would be further revised to provide that a tribe is considered a foreign government and that a public employee may accept travel expenses paid for by a tribe, but a disclosure would be required.
15. 930 CMR 5.08(3). Amendment clarifies that events for which no disclosure is required are those during regular daytime business hours, and permits
disclosures concerning events that serve a public purpose to be made after event by elected officials.
16. 930 CMR 5.08(4). Amendment eliminates disclosure requirement for legitimate speaking engagements.
17. 930 CMR 5.08(9). Amendment clarifies what we consider to be a ceremonial function, and gives examples.
18. 930 CMR 6.01(6). Amendment clarifies how disclosures should be made when there is no appointing authority.
19. 930 CMR 6.02. Amendment clarifies disclosure procedure.
20. 930 CMR 6.04. Amendment adds National Guard to emergency exemption.
21. 930 CMR 6.06. Amendment clarifies that legislators may use this exemption, and disclosure procedure.
22. 930 CMR 6.07. Amendment clarifies that legislators may use this exemption, and disclosure procedure.
23. 930 CMR 6.09. Amendment allows use of exemption when school committee member must participate in matter involving fees that affect immediate
family as well as own child.
24. 930 CMR 6.10. Amendment clarifies that exemption applies only to transfers of property interest where there is a conservation easement or similar
interest being advanced, not to any transfer of a fee interest regardless of whether a public-interest-related restriction is being created.
25. 930 CMR 6.20. Amendment allows clerk to use exemption when immediate family member is candidate, not just clerk herself.
26. 930 CMR 6.21 (New). Permits state employees to participate in state college savings plans.
27. 930 CMR 6.22 (New). Broadens teaching exemption.
28. 930 CMR 6.23 (New). Permits full participation by unpaid members of public advisory bodies.
Ms. Roney provided the Commission with a revised draft of this new proposed regulation. She stated that the exemption in this proposed regulation addresses a problem that has arisen for a number of years as well as codifies existing Commission precedent concerning members of retirement boards and Legal Division advice applying the principles of those decisions in similar situations. Ms. Roney noted that this new proposed regulation goes further by adding an exemption under § 4, allowing board members to act as agent for the entities they represent. She further noted that after a discussion by the Legal Division, the reference to uncompensated board members was removed because the rationale for wanting a person with a particular background or expertise to serve on a board applied whether or not the board position was compensated.
Ms. Roney stated that input regarding this proposed new regulation was received from a number of sources, including Common Cause, and the General Counsel for the Division of Professional Licensure, which includes thirty-one boards that have people from the professions on each such respective board. Although both groups are in favor of this proposed regulation, she stated that Common Cause wants the exemption in this proposed regulation to apply to former public employees.
Ms. Roney provided the example of a board member who was involved with drafting regulations, who leaves the board and then wants to work for an entity to challenge the regulations. She stated that there was no public policy reason to allow a former board member to challenge the regulations he participated in adopting which is the same rule that generally applies to former public employees. Ms. Roney noted that an additional problem in extending the exemption in the proposed regulation to a former board member would be that the former board member would then have insider expertise that a non-board member would not have which would be a significant advantage to any person or entity that wanted to hire someone to challenge regulations.
Chairman Swartwood invited Peter Sturges, the Chairman of Common Cause, to address the Commission. Mr. Sturges stated that the issue was not that a former board member would try to “tear down” something he had “built up” like a regulation. Rather, the issue was that unless the exemption was expanded to include the restrictions on former state employees in § 5, it would hamper a board’s ability to get people to serve. He provided an example of where the restrictions in § 4 and § 5 prohibited the creation of a commission for a number of years due to the inability to get people willing to serve.
Mr. Sturges noted that individuals who serve on such boards come to the board with a particular expertise in an area and generally have been involved in that area for a number of years. If, for example, when a public employee leaves the board, the restrictions on lobbying in § 5(e) would prohibit him from continuing to engage in the same activities he did prior to joining the board, it would have a detrimental impact on getting individuals to serve on boards. He further stated that Common Cause’s concerns about the restriction on lobbying in § 5(e) may be resolved by revising and narrowing the definition of “governmental body.” Mr. Sturges suggested that the definition of governmental body be revised to state that the governmental body for such a board member would be only the board on which he served that made him a public employee. Commissioner King suggested that examples be added to this proposed regulation to clarify these issues.
29. 930 CMR 6.24 (New). Deals with municipal population changes and effect on exemptions from conflict of interest law.
30. 930 CMR 6.25 (New). Creates Section 6 exemption for state elected officials when financial interest is shared with a substantial segment of public.
Ms. Roney stated that this proposed exemption was one requested by the House of Representatives. She noted that the purpose of the regulation is to allow an elected state official to participate in matters in which his or his immediate family member’s financial interest is shared with, and is the same as, his constituents. She noted that in those situations, it was appropriate to allow an elected state official to participate. Ms. Roney stated this proposed regulation was redrafted in order to make clear that the financial interest of the elected state official must be the same in nature and extent as the financial interest of his constituents. She Roney noted that this proposed regulation addresses when a written disclosure is required. It was the consensus of the Commission that the example referring to the MBTA be revised to reflect that no disclosure would be required.
31. 930 CMR 8.0. (New). This regulation would implement a change to chapter 268A enacted as part of the court reform act, Chapter 93 of the Acts of
2011, Section 118. That act created new G.L. c. 268A, § 6B, which requires state agency hiring authorities to require job applicants to provide
information about family members who already work for the state. The statute does not specify when this is required to occur. The regulation provides
that an agency may request the disclosure of information required by Section 6B in accordance with said agency’s regular practice for requiring
completion of written job applications. An agency may have a regular practice of requiring completion of written job applications only by applicants who
have passed a round or rounds of interviews, or otherwise satisfied applicable requirements for the position, and the agency will be considered to have
complied with M.G.L. c. 268A, § 6B if all applicants who reach that level are required to complete written job applications.
After discussion, the Commission, on the motion of Commissioner Trach, seconded by Commissioner Mangum, voted 5-0 to approve and adopt the following new or amended regulations: 930 CMR 1.01, 1.02(8), 2.05, 3.01, 3.02, 5.00, 6.00, and 8.00, as presented to the Commission at its meeting on May 18, 2012, and as revised by the Commission at that meeting; and to authorize staff to conclude procedures required by the Administrative Procedure Act, G.L. c. 30A, and related regulations and procedures for such adoption.
Legal Division Metrics
General Counsel Deirdre Roney presented the following Legal Division metrics for April 2012.
- Written advice. In April 2012, the Legal Division answered by letter or email 28 requests for advisory opinions.
For comparison: 2008 monthly average (pre Ethics Reform): 31
2010 monthly average (post Ethics Reform): 52
April 2012 (last month): 58
- Oral advice. In April 2012, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 417 persons.
For comparison: 2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
March 2012 (last month): 502
- Review of municipal letters. In April 2012, the Legal Division reviewed 8 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
March 2012 (last month): 4
Backlog. As of May 10, 2012, the Legal Division had 13 pending requests for written advice that are more than 30 days old, the oldest of which was received on January 12, 2012 (we are waiting for requested information to complete). A total of 36 requests for written advice are pending.
The Commission had no questions.
Legal Division Special Projects
Ms. Roney provided the Commission with a list of the special projects currently being worked on by the members of the Legal Division.
The Commission had no questions.
Ms. Roney presented the calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings.
The Commission had no questions.
Ms. Roney provided an update on the Commission’s only litigation matter, Theresa Lord Piatelli v. SEC, SUCV2010-02123-B. Piatelli has filed a notice of appeal from Judge Giles’ October 19, 2011 Decision and Order upholding the Commission’s decision. Notice of assembly of the record on appeal was received from the Clerk’s Office on April 10, 2012.
The Commission had no questions.
ENFORCEMENT COMMITTEE MEETING
Commissioner Murphy, Chairman of the Enforcement Committee, reported to the Commission about its meeting on April 30, 2012. He stated that the Committee discussed the issue of how to address the imposition of the higher civil penalty structure set forth in the 2009 Ethics Reform Law, which increased the maximum civil penalty per violation to $10,000. Commissioner Murphy stated that the Enforcement Division would use the following procedure for several months as part of a pilot project in order to assess whether it was useful. When the Enforcement Division files a preliminary inquiry report with the Commission recommending a finding of reasonable cause and a request to initiate an adjudicatory hearing, it will categorize the matter as category 1, which is the least serious violation with a penalty range midpoint of $2,500, category 2, which is the standard or ordinary violation with a penalty range midpoint of $5,000 or category 3, which is the most serious violation with a penalty range midpoint of $7,500. The preliminary inquiry report will also include an application of the six factors to be considered as to whether a violation is serious enough to be resolved publicly, a discussion of applicable precedent, a recommendation as to why the case should be resolved publicly and whether the Enforcement Division will be pursuing multiple violations.
The Commission had no questions.
At 10:36 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Trach, the Commission voted 5-0 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 and 4. Chairman Swartwood stated that these matters will include investigatory matters, cases deferred, preliminary inquiry recommendations and reports, summons authorization requests, closing memoranda, disposition agreements, public and private education letters, and advisory opinions.
Chairman Swartwood yes
Commissioner King yes
Commissioner Mangum yes
Commissioner Murphy yes
Commissioner Trach 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 Commission Meeting of May 18, 2012.
- Minutes of the State Ethics Commission Meeting for April 20, 2012 Public Session and Executive Session.
- Minutes of the Enforcement Committee Meeting for April 30, 2012 Public Session and Executive Session.
- Memorandum dated May 11, 2012 from David Giannotti to the Commission concerning Public Education and Communications Division activities for April 2012.
- Memorandum dated May 5, 2012 from Stephen P. Fauteux to the Commission concerning Enforcement Metrics as of March 31, 2011.
- Memorandum dated May 10, 2012 from Deirdre Roney to the Commission setting forth Legal Division matters for meeting.
- Memorandum dated May 10, 2012 from Deirdre Rooney to the Commission concerning proposed amended regulations with complete draft regulations.
- Letter dated May 14, 2012 from Peter Sturges and Pamela Wilmot to Karen Nober concerning draft regulation 930 CMR 6.23.
- Revised draft of new proposed regulation 930 CMR 6.23.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
- Memorandum dated May 11, 2012 from Stephen P. Fauteux to Commission concerning civil penalties.
Lauren E. Duca
Deputy Chief/SFI, Legal Division