MINUTES OF THE STATE ETHICS COMMISSION MEETING
September 21, 2012
One Ashburton Place, Room 619
Boston, MA  02108

PUBLIC SESSION

 

 

MEETING CONVENED

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. 

Chairman Swartwood welcomed representatives from the Ukraine visiting the United States through the Open World Leadership Center program who were attending the Commission meeting.  Chairman Swartwood stated that he and Commissioner King would meet with the delegation after the Commission meeting.

 

APPROVAL OF MEETING MINUTES

On the motion of Commissioner Trach, seconded by Commissioner King, the Commission voted 5-0 to waive the reading and approve the public session and executive session minutes for the July 20, 2012 meeting. 

 

EXECUTIVE DIRECTOR'S REPORT

Media

Executive Director Karen L. Nober informed the Commission about recent news reports appearing in the Boston Herald concerning a change in the conflict of interest law as part of the Court Reform Law that was enacted in August 2011.  The change requires state agencies to require job candidates to disclose the names of certain family members already employed by the state.  Ms. Nober said that we posted a notice concerning the change on the Commission’s website in December 2011 along with a sample form that agencies could use as part of their employment applications.  We also reviewed the employment application posted on the state Human Resources Division website with HRD staff to ensure it correctly reflected the change in the law.  We also updated the summary of the law that is required to be distributed to all state employees every year, and we incorporated a discussion about the change in our educational seminars.  We did not, however, send out notices to state agencies concerning the change in the law.  Ms. Nober stated that we have now provided that notice to state agencies, and we have also emailed a notice to all state and county agencies, and all municipalities, concerning a 2011 change in the conflict of interest law, which imposes certain restrictions on public employees who participated in any gaming legislation for one year after leaving public employment.

 

Formal Advisory Opinion 12-1

Ms. Nober said that the formal advisory opinion on solicitations by municipal officials was sent to all public agencies, and we received positive feedback from municipal officials.

 

Staff Evaluations

Ms. Nober said that evaluations of all staff were completed in early August.  Staff were given the opportunity to meet with their managers to discuss their evaluations and to respond in writing to their evaluations.

 

Manager Pay Raises

Ms. Nober requested that the Commission authorize her to award merit pay increases within a range of 2-3%, based on performance evaluation ratings, for the Commission’s 7 unclassified managers (not including herself).  She said that the 16 employees who are subject to a collective bargaining agreement will be receiving fixed pay raises.  The managers received pay increases of 1.5% last year and 2.5% the year before.  The Governor’s office has approved across-the-board pay increases of 3% for all executive branch managers for this year, but plans to move to a merit-based plan for next year.

After discussion by the Commission, on the motion of Commissioner Murphy, seconded by Commissioner King, the Commission voted 5-0 to approve the award of merit increases, effective as of July 1, 2012, for all Commission employees who are not subject to a collective bargaining agreement, excluding the Executive Director.  Each merit increase shall be a percentage increase within the range of 2% to 3% of the employee's annualized compensation, with the amount of each percentage increase to be determined by the Executive Director based on the employee's overall performance evaluation rating for the period June 2011 through June 2012.

 

Public Education and Communications Division Deputy Chief Hiring Update

Ms. Nober stated that the position was posted in July, and the Commission received 62 applications.  Twelve candidates were selected for first round interviews and 4 of those candidates were selected for second round interviews.  Those interviews will be completed within the next week.  The finalists will conduct a brief presentation as part of their second round interviews.  A selection decision will be made shortly thereafter.

 

Budget

Ms. Nober stated that the Commission’s FY 2013 spending plan has been submitted to the Executive Office of Administration and Finance.  We are required to submit a FY 2014 maintenance budget, which will include funding for union pay increases and the new public education division deputy chief position, by the end of October.  In mid-January 2013, the Governor will release his budget.

 

New Commission Member Appointment Update

Ms. Nober said that Judge King’s appointment expires in October.  He was appointed by the Secretary of State.  Ms. Nober said she has been in touch with the Secretary of State’s Office and they are on track to appoint a new commissioner.  However, she did not know if the new commissioner would be appointed prior to the October Commission meeting.  Since Chairman Swartwood will not be in attendance for the October meeting, if a new commissioner has not been appointed prior to the meeting, Judge King will chair the meeting.  However, if an appointment has been made, then Commissioner Mangum will preside over the meeting.

 

Next Meeting 

Ms. Nober stated that the next Commission meeting is scheduled for Friday, October 19, 2012 at 9:00 a.m. 

 

PUBLIC EDUCATION MATTERS

Public Education and Communications Division Chief David Giannotti presented his report of Public Education Division activities for July and August 2012 and for FY 2012.  The Commission had no questions. 

Chairman Swartwood asked about the delay in making the new online training programs available, and Mr. Giannotti discussed our efforts to use the state’s PACE learning management system.  He stated that we were told in March that PACE had become unstable, and that we would have to hold off on using PACE.  We then learned at the end of July that PACE had been restored to a stable environment, but it could only accommodate the state-county employee program, but not the municipal employee program, so we decided not to use PACE for either program.  The current plan is to instead host the programs on state Information Technology Division webservers.  The programs should be available in about 4 to 6 weeks.  We have kept public agencies informed of the status of the new online programs through a posting on the website, daily telephone calls and emails from public agencies, providing updates to the Mass. Town Clerks/Mass. City Clerks Association, and through educational seminars.

 

SFI MATTERS

SFI Update

Legal Division Deputy Chief/SFI Lauren Duca reported that the process of tracking all late filers and non-filers has been completed.  These names were compared against agency designation lists to determine whether they were included on the lists and to learn whether the filers were still employed at their public agencies.  Financial Disclosure Administrator and Analyst Robert Milt verified that filers were sent formal notices of lateness and resolved any address discrepancies.  Ms. Duca said they also requested from the public agencies copies of the letters the agencies sent to filers informing them of their filing obligation.  In August and September 2012, new formal notices of lateness were sent to 24 non-filers whose addresses were previously incorrect; most of whom subsequently filed in a timely manner.

The number of combined late and non-filers is approximately 41, including one current public employee.  Because 9 late-filers were not sent formal notices of lateness, we will not pursue civil penalties in those cases.  There are also problems with approximately 11 other late and non-filers.  Ms. Duca stated that Mr. Milt created detailed charts of late-filers and non-filers documenting the 41 individuals and any issues associated with their late or non-filing.  She thanked Mr. Milt for his work in creating the charts. 

Ms. Duca stated that she and Mr. Milt are in the process of meeting with agency liaisons, with 2 meetings scheduled for September and 2 meetings scheduled for October.  Agency liaisons, agency heads and general counsels were invited to attend the meetings, which will feature written materials as well as a slide presentation.  So far, 109 people have signed up to attend.  The purpose of the meetings is to clarify the agency’s responsibilities in the SFI process.  Ms. Duca and Mr. Milt have also designed an agency checklist to assist agencies in meeting their SFI responsibilities.  Ms. Duca thanked General Counsel Deirdre Roney for her assistance with editing the written meeting materials.

Ms. Duca said that we will focus on making sure agencies do not over-designate employees.  The next priority will be making fixes to the SFI electronic filing application and to begin work on a new filing system, a new SFI form and new filing instructions.  Ms. Duca said that she plans to form a staff working group to work on these projects.

Ms. Nober stated that the liaison meetings are an important initiative, which we have not done before, and they will allow us to establish relationships with the agency liaisons.

The Commission had no questions.

 

LEGAL DIVISION MATTERS

Update on Commission Regulations

General Counsel Deirdre Roney reported that most of the amended regulations were published in the Massachusetts Register and took effect on August 3, 2012.  All the amended regulations concerning hearing procedures and exemptions are in effect.  The Secretary of State did not accept two of the regulations for publication because they were not included in the original notice of rulemaking.  Those two regulations related to the new requirement that state job applicants disclose their relatives, and SFI filer notices.  Ms. Roney said that we may wait to move forward with these regulations until draft revisions of all the SFI regulations are completed, so we can do them all at once.

 

Update on Advisory on Making and Handling Recommendation for Employment

Ms. Roney stated that the changes suggested during the Legal Committee meeting on July 20, 2012 have been made and a draft has been circulated to interested parties for further comment. 

 

Legal Division metrics for July and August 2012

Ms. Roney presented the following Legal Division metrics for July and August 2012.
 

July:                       

  • Written advice.  In July 2012, the Legal Division answered by letter or email 22 written requests for advisory opinions under G.L. c. 268A and c.268B.

For comparison:  

2008 monthly average (pre Ethics Reform):  31

2010 monthly average (post Ethics Reform):  52

July 2011 (same month last year):   47

June 2012 (last month):  35

                                   

  • Oral advice.  During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 33 state,county and municipal officials.

For comparison: 

2008 monthly average (pre Ethics Reform):  280

2010 monthly average (post Ethics Reform):  450

July 2011 (same month last year):  312

June 2012: (last month):  448

 

  • Review of municipal letters.  The Legal Division reviewed 4 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

July 2011 (same month last year):  9

June 2012 (last month):  10

 

August:

  • Formal opinion.  The Legal Division issued one formal opinion in August 2012 on the subject of municipal employees soliciting donations.
  • Written advice.  In August 2012, the Legal Division answered by letter or email 41 written requests for advisory opinions under G.L. c. 268A and c. 268B.
                              

For comparison:

2008 monthly average (pre Ethics Reform):  31

2010 monthly average (post Ethics Reform):  52

August 2011 (same month last year):  34

 

  • Oral advice.  During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 430 state, county and municipal officials.

For comparison: 

2008 monthly average (pre Ethics Reform):  280

2010 monthly average (post Ethics Reform):  450

August 2011 (same month last year):  435

 

  • Review of municipal letters.  The Legal Division reviewed 5 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

August 2011 (same month last year):  6

 

  • Backlog.  As of today, the Legal Division has 4 pending requests for written advice that are more than 30 days old; the oldest is dated August 7, 2012.
    There are a total of 19 pending requests for written advice.

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.

 

Adjudicatory Matters

Ms. Roney presented the calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings.  
The Commission had no questions.

In Re Richard McClure, Docket No. 12-0011:  Ms. Roney requested that the Chairman assign a hearing officer for this adjudicatory matter.  
Chairman Swartwood assigned Commissioner Mangum to handle the adjudicatory hearing.  Legal Division Deputy Chief David Wilson will serve as the legal advisor.

 

Litigation Matter

Ms. Roney provided an update on the Commission’s only pending litigation matter, Theresa Lord Piatelli v. SEC, SUCV2010-02123-B.  Piatelli filed a notice of appeal from Judge Giles’ October 19, 2011 Decision and Order upholding the Commission’s decision.  Piatelli filed an amended appeal, and the Commission is required to file an answer by October 18, 2012.

The Commission had no questions.

 

Amicus Brief

Ms. Roney presented a draft amicus brief regarding a request by the Supreme Judicial Court for amicus briefs in Leder v. Rigby, SJC-11224.  After discussion by the Commission, on the motion of Commissioner King, seconded by Commissioner Trach, the Commission voted 5-0 to authorize Ms. Roney to submit the amicus brief.  Ms. Roney stated that oral arguments in the case will probably occur in December 2012. 

The Commission commended Ms. Roney for her work on the brief.

Chairman Swartwood stated that he understood that there was a request to allow the guests from the Open World Leadership Center to attend the Commission’s executive session.  Chairman Swartwood stated that he was compelled to respectfully decline the request.

 

EXECUTIVE SESSION

At 9:40 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 cases deferred, 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 King                  yes      
Commissioner Mangum          yes      
Commissioner Murphy             yes      
Commissioner Trach                yes      

 

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

 

PUBLIC SESSION

At 11:15 a.m., the Commission reconvened in public session to discuss the work performance of the Executive Director for purposes of preparing her performance evaluation.  Present were Chairman Swartwood, Commissioner King, Commissioner Mangum, Commissioner Murphy, and Commissioner Trach.  General Counsel Deirdre Roney was also present.

 

Executive Director Performance Evaluation

Commissioner Mangum and Commissioner Trach reported to the other Commissioners on their meetings with the Division Chiefs, Ms. Roney, Mr. Fauteux, 
Mr. Giannotti, and Mr. Memmolo.  The Commissioners discussed this information and their views of Ms. Nober’s performance.

 

EXECUTIVE SESSION

At 11:27 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Trach, the Commission voted 5-0 to re-enter into executive session to discuss matters subject to the provisions of G.L. c. 30A, § 21, subparagraph (a)(7) and G.L. c. 4, § 7, Clause Twenty-Sixth, exemption (c) and G.L. c. 66§10.  
Chairman Swartwood stated that these matters will include the preparation of the Executive Director’s performance evaluation based upon the public session discussion.  

 

VOTE:

Chairman Swartwood                yes      
Commissioner King                   yes      
Commissioner Mangum           yes      
Commissioner Murphy              yes      
Commissioner Trach                 yes      

 

Chairman Swartwood stated that the Commission will not reconvene in public session after the executive session. 

 

LIST OF DOCUMENTS USED FOR THIS MEETING

  1. Agenda for the Commission Meeting of September 21, 2012.
  2. Minutes of the State Ethics Commission Meeting for July 20, 2012 Public Session and Executive Session.
  1. Memorandum dated September 13, 2012 from David Giannotti to the Commission concerning Public Education and Communications Division activities for July and August 2012.
  1. Memorandum dated September 13, 2012 from David Giannotti to the Commission concerning Public Education and Communications Division and Information Technology accomplishments for FY 2012.
  1. Memorandum dated July 12, 2012 from Stephen P. Fauteux to the Commission presenting FY 2012 Enforcement Division metrics.
  1. Memorandum dated September 13, 2012 from Deirdre Roney to the Commission setting forth Legal Division matters for meeting.
  2. Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
  3. Draft amicus brief to the Supreme Judicial Court in Leder v. Rigby, SJC-11224, dated September 13, 2012 from Deirdre Roney.
  4. Executive Director Performance Evaluation blank form.

 

Respectfully submitted, 

 

David Giannotti
Public Education and Communications
Division Chief