MINUTES OF THE STATE ETHICS COMMISSION MEETING
June 28, 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 and William J. Trach. Commissioner Regina L. Quinlan was absent.
In Re Richard McClure, Docket No. 12-0011: Closing arguments in the case were conducted before the Commission. The Respondent, Richard McClure, represented himself in the matter. Mr. McClure began his closing argument at 9:00 a.m. and concluded at 9:10 a.m. The Petitioner, State Ethics Commission, was represented by Enforcement Division Deputy Chief Karen B. Gray. Ms. Gray began her closing argument at 9:10 a.m. and concluded at 9:19 a.m.
In Re Cheryl Jacques, Docket No. 12-0002: Chairman Swartwood disclosed prior professional dealings with the Respondent’s counsel, Attorney Leonard H. Kesten. Chairman Swartwood stated that Attorney Kesten has represented clients in court when Chairman Swartwood served as a magistrate judge, and Attorney Kesten’s firm hired Chairman Swartwood as a mediator in a number of cases. Chairman Swartwood stated that he could remain impartial and would continue to participate in the case before the Commission.
The Petitioner, State Ethics Commission, was represented by Enforcement Division Staff Counsel Nancy O. Rothstein. Ms. Rothstein began her closing argument at 9:20 a.m. and concluded at 9:34 a.m. The Respondent, Cheryl Jacques, was represented by Attorney Leonard H. Kesten. Attorney Kesten began his closing argument at 9:34 a.m. and concluded at 9:47 a.m.
Chairman Swartwood stated that deliberations in both matters would begin in the executive session.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner Trach, seconded by Commissioner Mangum, the Commission voted 4-0 to waive the reading and approve the public and executive session minutes for the May 17, 2013 meeting.
EXECUTIVE DIRECTOR’S REPORT
Executive Director Karen L. Nober reported that annual staff performance evaluations for the period mid-June 2012 to mid-June 2013 are underway. Evaluation forms have been distributed to division chiefs to complete for their staff, and Ms. Nober has requested that division chiefs submit their self-evaluations to her by the end of July. She also stated that she would provide the Commission with her own self-evaluation shortly.
Appointment of a New Chairman
Ms. Nober stated that Chairman Swartwood’s term ends in October 2013, and she has contacted the Governor’s office about a new appointment.
Enforcement Division Reorganization
Ms. Nober announced that Enforcement Division Senior Investigator Katherine Gallant has been promoted to the position of Deputy Chief/Investigations. Ms. Gallant will oversee the informal investigation stage for complaints received by the Commission and supervise the division’s investigators. Ms. Nober noted Ms. Gallant’s 10 years with the Commission and said that Ms. Gallant is the right person for this new position because she is a terrific employee who is smart, organized and well-respected by her colleagues.
Ms. Nober reported that the Enforcement Division has been reorganized, effective July 1, 2013, so that staffing better matches the division’s workflow. Informal screenings have been eliminated and the five investigators will now be organized within an Investigations Unit, which Ms. Gallant will manage. All five investigators will now handle the informal investigation of complaints. Once a matter is ready for a formal preliminary inquiry, it will be handled by a division attorney. We will no longer have attorney-investigation teams. Commissioners will no longer receive Closing Memoranda in their packets, but will be informally notified about all “close call” cases before those cases are resolved. The reorganization will allow for greater staff independence and accountability. Ms. Nober said that she and Enforcement Division Chief Stephen P. Fauteux spent a considerable period of time developing the new division structure. Mr. Fauteux noted that the transition to the new structure is ongoing, and complaints are being reassigned to investigators.
Ms. Nober said that plans to discuss the reorganization in more detail with the Enforcement Committee, including the types of reports to be provided to the Commission going forward.
Ms. Nober stated that the next Commission meeting is scheduled for Friday, August 2, at 9:00 a.m. Additionally, a Legal Committee meeting has been scheduled for Thursday, July 25, at 1:00 p.m. to discuss Advisory 13-1: Making and Receiving Job Recommendations.
PUBLIC EDUCATION DIVISION MATTERS
Public Education and Communications Division Chief David Giannotti presented his report of Public Education Division activities for May 2013. Mr. Giannotti stated that Information Technology Specialist Tony Webb recently completed a major upgrade to Ethos, the Commission’s complaint management application. The project involved migrating the application to new servers and new software. Mr. Giannotti thanked Mr. Webb for his hard work on the project and stated that it will extend the life of the case management application for several more years.
The Commission had no questions.
CY 2012 Filing Update
Legal Division Deputy Chief/SFI Lauren Duca stated that the 2012 SFI filing period ended May 28, 2013. There are nine filers who have yet to file their 2012 SFIs, one current public employee and eight former public employees. Adjustments to the process through which late filers are notified were successful this year, Ms. Duca said. The SFI staff is currently making a final effort to reach late filers, and then the matters will be referred to the Enforcement Division to handle as complaints. Of the 19 late notices sent to former public employees who eventually filed their 2012 SFIs, 16 filed within the 10 day grace period after receiving the late notice.
Update on Improvements to Electronic Filing System
Ms. Duca stated that Financial Disclosure Administrator and Analyst Robert Milt is the project manager on a consulting contract to develop a Request for Proposals so that the Commission can eventually replace the SFI electronic filing application. Mr. Milt then presented an update on the project. He stated that the Commission contracted with PCG’s Technology Consulting Director Susan Laniewski, who met with staff members from all divisions in order to develop a comprehensive statement of work and recommendations for the project. Mr. Milt explained that the primary goals in developing a new system will be to simplify the SFI filing form, provide an easy-to-use program for filers and Commission staff, and allow for more transparency in public review of SFI information. Commissioner Murphy asked whether there was a cost estimate for replacing the system, and Ms. Nober explained that it will cost roughly $600,000. Ms. Nober stated that having the statement of work from PCG and the estimate will be helpful when the Commission requests bond funding for the project.
LEGAL DIVISION MATTERS
Pro Se Respondent Information Sheet
General Counsel Deirdre Roney presented a proposed informational handout for pro se respondents in Commission hearings to better assist them in understanding and navigating the hearing process. The document will be posted to the Commission’s website. Ms. Roney said the document addresses issues that frequently come up when respondents represent themselves during hearings. Chairman Swartwood suggested that Ms. Roney add language to note that the document is not a substitute for legal counsel, and to encourage respondents to seek legal counsel. Chairman Swartwood also suggested edits to change “opening argument(s)” to “opening statement(s)” in the document, and to note that opening and closing statements do not constitute evidence. Commissioner Murphy suggested adding language explaining that the Enforcement Division, which prosecutes cases, and the Commission itself, which decides cases, operate independently, and that the fact that the Enforcement Division has brought charges does not necessarily mean that the person will be found liable for a violation. Ms. Roney agreed to make the suggested edits to the document.
Ms. Roney introduced Madeline Davis Lynch, the Legal Division’s summer intern. Ms. Lynch is a third-year law student at Suffolk University. The Commissioners welcomed her.
Legal Division Metrics
General Counsel/Legal Division Chief Deirdre Roney presented the following Legal Division Metrics for May 2013.
- Written advice. In May 2013, the Legal Division answered by letter or email 19 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
May 2012 (same month last year): 45
April 2013 (previous month): 45
- Oral advice. During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 704 persons; this number reflects calls seeking legal advice related to Statements of Financial Interests. Non-legal SFI calls are reported below.
2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
May 2012 (same month last year): 491
April 2013 (previous month): 701
- 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 1.0
2008 monthly average (pre Ethics Reform): 6
2010 monthly average (post Ethics Reform): 8
May 2012 (same month last year): 5
April 2013 (previous month): 8
- Backlog. As of today, there are 17 pending requests for written advice more than 30 days old. There are 42 pending requests for written advice.
- SFI calls. There were 521 calls not involving legal advice during May 2013 handled by Ms. Duca, Mr. Milt, Mr. Webb and Carolyn Teehan.
Conflict of Interest Checks
Ms. Roney asked the Commissioners whether they would the lists of subjects and witnesses they receive for the purpose of identifying conflicts of interest to include the municipalities and attorneys involved in Enforcement cases. By consensus, the Commission agreed that the municipality information would be helpful, but that they do not need the names of attorneys. They also requested that two versions of the list be prepared, one with municipality information, and one without.
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.
Leder v. Rigby, SJC-11224: This case was argued before the Supreme Judicial Court. The Commission submitted an amicus brief. The case was decided on May 31, 2013. The SJC agreed with the Commission’s argument in our amicus brief.
ENFORCEMENT DIVISION MATTERS
Enforcement Division Senior Investigator Katherine Gallant presented a report on complaint intake metrics. The Commission had no questions.
At 10:19 a.m., on the motion of Chairman Swartwood, seconded by Commissioner Trach, 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 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
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 the Commission Meeting of June 28, 2013.
- Minutes of the State Ethics Commission Meeting for the May 17, 2013 Public and Executive Session.
- Memorandum dated June 21, 2013 from Karen L. Nober and Stephen P. Fauteux to the Commission concerning a reorganization of the Enforcement Division.
- Memorandum dated June 20, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division activities for May 2013.
- Memorandum dated June 20, 2013 from Deirdre Roney to the Commission setting forth Legal Division matters for the meeting.
- Draft information sheet for Persons Representing Themselves in State Ethics Commission Proceedings.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings
- Memorandum dated June 20, 2013 from Deirdre Roney to the Commission concerning the SJC decision in Leder v. Superintendent of Schools.
Public Education and Communications
Division Deputy Chief