MINUTES OF THE STATE ETHICS COMMISSION MEETING
December 19, 2013
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Barbara Dortch-Okara called the meeting to order at 12:30 p.m. Also in attendance were Commissioners Paula Finley Mangum and William J. Trach. Commissioner Martin F. Murphy arrived at 12:35 p.m., and Commissioner Regina L. Quinlan arrived at 12:54 p.m.
Chairman Dortch-Okara informed those in attendance that members of the news media would be recording the meeting.
EXECUTIVE DIRECTOR’S REPORT
Executive Director Karen L. Nober welcomed the new Chair, and noted that Chairman Dortch-Okara’s appointment was perfectly timed so that she could attend the public hearings regarding the proposed regulatory exemption that will be discussed during in the meeting.
Ms. Nober reported that two public hearings regarding a proposed regulatory exemption were held recently, one on Cape Cod and the other in Boston. State Senator Daniel Wolf testified at the hearing on Cape Cod. Attorneys Carl Valvo and Peter Sturges and Common Cause Massachusetts Executive Director Pamela Wilmot testified at the hearing in Boston. Ms. Nober stated that the Commission also received other helpful and constructive written public comments, and a new draft of the proposed exemption being presented for the Commission’s review reflects some of the testimony and comment received. Ms. Nober stated that the Commission will be asked to review the revised draft and supporting materials, but the members should not feel any need to vote on the matter today unless they were prepared to do so, considering that the members had just received the new draft and supporting materials. The proposed regulatory exemption will be discussed during the Legal Division’s portion of the public session.
Comptroller’s Office Review of Financial Transactions
Ms. Nober reported that the Commission has had several meetings with representatives of the Comptroller’s Office of Quality Assurance, which performs reviews regarding state agencies’ financial operations. She stated that the meetings have been positive overall. In January 2013, the Commission revised its Internal Controls, and Ms. Nober stated that she provided division chiefs with a copy of the Commission’s internal controls at that time, and plans to do so annually.
Ms. Nober reported that, as the Commission prepares for the FY 2015 budget, she has submitted requests to the Executive Office for Administration and Finance asking it to consider proposed outside sections to the budget that would amend G.L. c. 268B §3 in two respects, one that would authorize the Commission to accept gifts to the agency. Ms. Nober stated that such a provision would allow an outside attorney with a specific area of expertise to provide services to the Commission pro bono. Additionally, Ms. Nober said she has requested an outside section that would allow the Commission to retain revenues, explaining that although the Commission would continue to return revenues from civil penalties to the General Fund, the section would allow the agency to retain other revenues, such as fees from public records requests.
Ms. Nober reported that, at her request, General Counsel Deirdre Roney has prepared a new harassment policy for the Commission’s review and approval. Ms. Nober praised Ms. Roney’s work in developing the new policy, and stated that the new policy updates the Commission’s existing sexual-harassment policy and adds new provisions to prevent all other forms of harassment. She said that the policy will be distributed to all staff annually to comply with legal requirements. Ms. Nober also stated that the Human Resources Division provides online training for managers on harassment, and she intends to have all Commission managers complete the training.
Chairman Swartwood Event
Ms. Nober stated that she will update the Commissioners and staff about plans for an event for former Chairman Charles B. Swartwood, III, in January.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner Mangum, seconded by Commissioner Murphy, the Commission voted 3-0, with Chairman Dortch-Okara recused because she did not attend the meeting, to waive the reading and approve the minutes of the November 21, 2013 public and executive sessions. Commissioner Quinlan had not yet arrived at the meeting.
PUBLIC EDUCATION DIVISION MATTERS
Public Education and Communications Division Chief David Giannotti welcomed the new Chair and presented his report of Public Education and Communications Division activities for the month of November 2013. He thanked Public Education and Communications Division Deputy Chief Marisa Donelan for her work collecting the mandatory education and training compliance records from elected state and county officials, and for loading the list of civil penalties paid by 2012 SFI late-filers to the website.
The Commission had no questions.
LEGAL DIVISION MATTERS
Statements of Financial Interests
Legal Division Deputy Chief/SFI Lauren Duca presented a report providing an overview of the year-round activities related to SFI filing, designation and outreach to public agencies. Ms. Nober stated that the outreach activities are relatively new, and that we have received positive feedback. Ms. Duca also stated that plans are ongoing to replace the outdated SFI electronic filing system to make it more user-friendly.
The Commission had no questions.
Ms. Roney presented a memorandum and draft State Ethics Commission Policy Against Harassment and Sexual Harassment, dated December 19, 2013. The policy updates the Commission’s existing policy against sexual harassment to add prohibitions on other forms of harassment and also incorporate guidelines established by the state Human Resources Division and the Massachusetts Commission Against Discrimination. After discussion, the Commission directed Ms. Roney to make the following changes to the draft policy:
- delete the word “handicap” and replace the phrase “gender identity” with “gender expression”;
- add pregnancy status to the list of legally protected statuses;
- check whether the law prohibits discrimination on the bases of age against those over age 40, or age 40 and over, and revise if needed;
- on p. 3 of the draft, paragraph 2, delete the words “whether it is intended or not”’ and
- state explicitly that the Executive Director has appointed Ms. Roney and Legal Division Deputy Chief David Wilson as Harassment and Sexual Harassment Officers.
Following discussion by the Commission, on the motion of Chairman Dortch-Okara, seconded by Commissioner Quinlan, the Commission voted 5-0 to approve the draft policy as amended, and to have the policy replace and supersede both Section 1.8 of the Commission’s 2005 Personnel Manual and Appendix 3 to the 2005 Personnel Manual.
EXECUTIVE DIRECTOR’S REPORT
After discussion, the Commission agreed by consensus to hold its regular meetings on the third Thursday of every month, beginning at 9:00 a.m. The next Commission meeting will be held January 16, 2014, at 9:00 a.m.
LEGAL DIVISION MATTERS
Proposed Regulatory Exemption 930 CMR 6.26
Ms. Roney presented a memorandum concerning a proposed regulatory exemption and a revised draft reflecting some suggestions provided during the public comment period. The Commission discussed the revised version and directed the staff to create a new draft with additional revisions. The Commission agreed by consensus to continue the matter until its January meeting. Commissioner Murphy praised Ms. Nober, Ms. Roney and the staff for their work on the regulatory exemption.
Legal Division Metrics
Ms. Roney presented the following Legal Division metrics for November 2013.
- Written advice. In October 2013, the Legal Division answered by letter or email 36 written requests for advisory opinions under G.L. c. 268A and c. 268B.
2008 monthly average (pre Ethics Reform): 31
2010 monthly average (post Ethics Reform): 52
November 2012 (same month last year): 34
October 2013 (previous month): 36
- Oral advice. During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 369 state, county and municipal officials.
2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
November 2012 (same month last year): 331
October 2013 (previous month): 472
- 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.
2008 monthly average (pre Ethics Reform): 6
2010 monthly average (post Ethics Reform): 8
November 2012 (same month last year): 6
October 2013 (previous month): 2
- Backlog. As of today, there are 16 pending requests for written advice that are more than 30 days old: one from August 2013, three from September 2013, eight from October 2013 and four from November 2013. The Legal Division has a total of 24 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. There were no questions.
Ms. Roney presented the calendar of hearing dates and pre-hearing conferences in pending Commission adjudicatory proceedings.
Ms. Roney stated that, according to the Middlesex Superior Court Clerk’s Office, Richard McClure has filed a complaint seeking judicial review of the Commission’s August 2, 2013 finding that he violated c. 268A, § 17. However, McClure has yet to serve the complaint upon the Commission.
ENFORCEMENT DIVISION MATTERS
Investigations Unit Metrics
Enforcement Division Deputy Chief/Investigations Katherine Gallant presented a report of the Investigations Unit activities for November 2013. She stated that the number of pending complaints has decreased from 297 at the end of November to 256 as of today. The Commission had no questions.
At 2:39 p.m., on the motion of Chairman Dortch-Okara, seconded by Commissioner Quinlan, 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 Dortch-Okara stated that these matters will include investigatory matters, cases deferred, preliminary inquiry recommendations and reports, summons authorization requests, disposition agreements, public and private education letters and advisory opinions.
Chairman Dortch-Okara yes
Commissioner Mangum yes
Commissioner Murphy yes
Commissioner Trach yes
Commissioner Quinlan yes
Chairman Dortch-Okara 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 December 19, 2013.
- Minutes of the State Ethics Commission Meeting for the November 21, 2013 Public and Executive Session.
- Memorandum dated December 12, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division activities for November 2013.
- Memorandum dated December 12, 2013 from Deirdre Roney to the Commission setting forth Legal Division matters for the meeting.
- Memorandum dated December 12, 2013 from Lauren E. Duca to the Commission concerning a report on current work related to Statements of Financial Interests.
- Memorandum dated December 10, 2013 from Deirdre Roney to the Commission concerning an Updated Commission Policy Against Harassment.
- Draft State Ethics Commission Policy Against Harassment and Sexual Harassment.
- Memorandum dated December 19, 2013 from Deirdre Roney to the Commission concerning the revised draft of proposed regulatory exemption 930 CMR 6.26.
- Draft Ethics Commission Regulation – 930 CMR 9.26, dated December 19, 2013, redlined.
- Draft Ethics Commission Regulation – 930 CMR 9.26, dated December 19, 2013, without redlining.
- Public comments and testimony provided to the Commission during the public hearings and public comment period concerning draft regulation 930 CMR 9.26.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
- Report of Enforcement Divisions Investigations Unit Metrics and Attorney Metrics.
Public Education and Communications
Division Deputy Chief