MINUTES OF THE STATE ETHICS COMMISSION MEETING
August 2, 2013
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 Paula Finley Mangum, Martin F. Murphy, William J. Trach and Regina L. Quinlan.
APPROVAL OF MEETING MINUTES
Chairman Swartwood made two corrections to the minutes of the June 28, 2013 public and executive sessions. On the motion of Commissioner Trach, seconded by Commissioner Mangum, the Commission voted 4-0, with Commissioner Quinlan abstaining because she was not present at the meeting, to waive the reading and approve the minutes of the June 28, 2013 public and executive sessions, as amended.
Chairman Swartwood discussed a possible change to the Commission’s regular meeting schedule due to scheduling conflicts. After discussion by the Commission, on the motion of Commissioner Quinlan, seconded by Commissioner Murphy, the Commission voted 5-0 to change the date of regular Commission meetings from the 3rd Friday of every month to the 3rd Thursday of every month, with meetings to begin at 9:00 a.m. Chairman Swartwood stated that the next Commission meeting is therefore scheduled for Thursday, September 19, 2013 at 9:00 a.m.
EXECUTIVE DIRECTOR’S REPORT
Executive Director Karen L. Nober reported that Enforcement Division Staff Counsel Nancy O. Rothstein is leaving the Commission in mid-August to join the Attorney General’s Office, where, as an assistant attorney general, she will work in the Cyber Crimes Division, prosecuting child pornography and human trafficking cases. Ms. Nober stated that Ms. Rothstein’s departure is a loss for the Commission, and she wished her well in her new position. Chairman Swartwood, on behalf of the Commission, thanked Ms. Rothstein for her service.
Ms. Nober also stated that she has received all of the division chiefs’ self-evaluations and she will provide her self-evaluation to the Commission shortly. General Counsel Deirdre Roney will follow up with Commissioner Mangum and Commissioner Trach to provide the evaluation forms and to schedule meetings with division chiefs for September.
Enforcement Division Reorganization
Ms. Nober stated that the reorganization of the Enforcement Division, which went into effect July 1, 2013, has gone very smoothly, thanks mostly to the efforts of Enforcement Division Deputy Chief-Investigations Katherine Gallant. Ms. Gallant reviewed more than 300 complaints and distributed them among the five investigators to ensure a fair and equitable workload. Ms. Gallant is working with Chief Financial Officer Michael Memmolo to discuss potential technological improvements that could benefit the division. Ms. Nober stated that she is pleased with the way the reorganization has progressed.
Legal Committee Meeting
Ms. Nober stated that the Commission’s Legal Committee met July 25, 2013 to discuss issues raised by the House of Representatives regarding Advisory 13-1: Making and Receiving Job Recommendations. She said that Commissioner Trach would brief the Commission on the meeting, and then General Counsel Roney will discuss possible changes to the advisory. Following today’s discussion, Ms. Nober said she plans to meet again with legislators to discuss specific issues they raised with the Advisory. She stated that Commission staff will prepare a revised draft. That draft will be provided to House Counsel, Senate Counsel and the Governor’s office, prior to the Commission’s September meeting. A final version will be brought to the September Commission meeting for review and approval.
Ms. Nober reminded the Commission and staff members about an end-of-summer staff outing scheduled for Sept. 7, 2013 at Chairman Swartwood’s home, and thanked him for hosting the event.
Ms. Nober stated that the next Commission meeting is scheduled for Thursday, September 19, at 9:00 a.m.
PUBLIC EDUCATION DIVISION MATTERS
Public Education and Communications Division Chief David Giannotti presented his report of Public Education Division activities for June 2013. Mr. Giannotti also presented his report of the division’s FY 2013 activities. The Commission had no questions.
LEGAL DIVISION MATTERS
Update on Advisory 13-1: Making and Receiving Job Recommendations
Commissioner Trach stated that the Legal Committee met on July 25, 2013. In attendance were the Chairman, Commissioner Trach, Ms. Nober and Ms. Roney. Commissioner Trach stated that the purpose of the meeting was to discuss the meeting Ms. Nober, Ms. Roney and the Chairman had with House Counsel and one of the state representatives about the advisory, and to address any concerns raised by state legislators. Commissioner Trach said that the feedback included suggested examples and other changes to clarify the intent behind the Advisory. The Committee reviewed those changes, reached consensus on some of them, and decided that some should be reviewed by the full Commission. By consensus, the Commission agreed to direct the Legal Division to make draft revisions to the Advisory clarifying the following: The risks associated with making an oral recommendation on behalf of a job candidate; that public officials who wish to make generic written recommendations on behalf of constituents must still make a minimal determination of the constituents’ qualifications; and that a hypothetical question regarding internal “blast e-mails” regarding job-seekers would not raise c. 268A concerns.
Legal Division Report for FY 2013
Ms. Roney presented a report of Legal Division activities for FY 2013. She thanked the Legal Division staff for handling a high volume of calls and keeping the backlog very low. She stated that an increase in the number of calls may have been prompted by public employees taking the conflict of interest law online training programs.
Legal Division Metrics
Ms. Roney presented the following Legal Division metrics for June 2013.
- Written advice. In June 2013, the Legal Division answered by letter or email 35 written requests for advisory opinions under G.L. c. 268A.
For comparison: 2008 monthly average (pre Ethics Reform): 31
2010 monthly average (post Ethics Reform): 52
June 2012 (same month last year): 37
May 2013 (previous month): 19
- Oral advice. During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 435 persons. In many cases, oral advice was subsequently confirmed by email.
For comparison: 2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
June 2012 (same month last year): 435
May 2013 (previous month): 704
- Review of municipal letters. The Legal Division reviewed 12 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
June 2012 (same month last year): 10
May 2013 (previous month): 4
- Backlog. As of today, there are 5 pending requests for written advice more than 30 days old, the oldest of which was received May 8, 2013. There are 21 pending requests for written advice.
Legal Division Special Projects
Ms. Roney provided the Commission with a list of the special projects currently being worked on by 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.
Theresa Lord Piatelli v. SEC, 2012-P-0612: The case was argued in the Appeals Court on February 7, 2013. The matter remains under advisement.
ENFORCEMENT DIVISION MATTERS
Division FY 2013 Metrics
Enforcement Division Chief Stephen P. Fauteux presented a report of Enforcement Division activities in FY 2013. He stated that the production and timeliness of the division is consistent with the past five years, though he said the division is at a five-year high in terms of complaint inventory. He said he expects that that number will decrease within the next several months.
Investigations Unit Metrics
Ms. Gallant presented a report of the Investigations Unit activities in June 2013 and early July 2013. She stated that as part of the reorganization of the division, she evaluated more than 300 complaints and assigned them among the five investigators, resulting in an equitable caseload for each. She also closed several complaints at that stage. Commissioner Murphy said that Ms. Gallant’s reports are very helpful, and asked that she include referrals from other agencies in her report.
At 10:15 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, advisory opinions and deliberations.
Chairman Swartwood yes
Commissioner Mangum yes
Commissioner Murphy yes
Commissioner Trach yes
Commissioner Quinlan yes
Chairman Swartwood stated that the Commission would not reconvene in public session following the executive session.
LIST OF DOCUMENTS USED AT THIS MEETING
- Agenda for the Commission Meeting of August 2, 2013.
- Minutes of the State Ethics Commission Meeting for the June 28, 2013 Public and Executive Session.
- Memorandum dated July 26, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division activities for June 2013.
- Memorandum dated July 26, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division and Information Technology accomplishments in FY 2013.
- Memorandum dated July 25, 2013 from Deirdre Roney to the Commission setting forth Legal Division matters for the meeting.
- Memorandum dated July 25, 2013 from Deirdre Roney to the Commission providing an update concerning Advisory 13-1.
- Memorandum dated July 25, 2013 from Deirdre Roney to the Commission concerning Legal Division work during FY 2013.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
- Memorandum dated July 8, 2013 from Stephen P. Fauteux to the Commission concerning Enforcement Division metrics for FY 2013.
- Memorandum dated July 26, 2013 from Katherine Gallant to the Commission providing the Enforcement Division Complaint Intake Report.
Public Education and Communications
Division Deputy Chief