MINUTES OF THE STATE ETHICS COMMISSION MEETING
October 17, 2013
One Ashburton Place, Room 619
Boston, MA 02108
Chairman Charles B. Swartwood, III called the meeting to order at 12:30 p.m. Also in attendance were Commissioners Paula Finley Mangum, William J. Trach and Regina L. Quinlan. Commissioner Martin F. Murphy was absent. Chairman Swartwood stated that the meeting’s public session would be recorded on audio and video devices by members of the news media.
APPROVAL OF MEETING MINUTES
On the motion of Commissioner Swartwood, seconded by Commissioner Trach, the Commission voted 4-0 to waive the reading and approve the minutes of the September 19, 2013 public and executive sessions. Chairman Swartwood stated that an oral disclosure he made during the September meeting concerning Congressman William Delahunt was inaccurate. Congressman William Keating currently represents the district in which Chairman Swartwood resides, making his disclosure concerning Congressman Delahunt unnecessary.
EXECUTIVE DIRECTOR’S REPORT
Executive Director Karen L. Nober reported that she believes the Governor might appoint a new Chairman in time for the Commission’s November meeting, and that today would likely be Chairman Swartwood’s last meeting. She stated that she plans to organize a farewell event in Chairman Swartwood’s honor, and would follow up with the Commission and staff on the details.
Ms. Nober reported that the budget process for FY 2015 has begun, and that a maintenance budget for FY 2015 would be submitted to the Executive Office for Administration and Finance this week. A maintenance budget includes the funding required for the Commission to operate at its current levels. Ms. Nober stated that Unit 6 employees are scheduled to receive the final pay increase under the current collective bargaining agreement in January 2014, and that it is unknown whether the administration is negotiating any additional increases for FY 2015.
Ms. Nober stated that over the next several months, Commission staff will be updating job descriptions, noting that the reorganization of the Enforcement Division requires changes to almost all of the division’s job descriptions. Other job descriptions will also be reviewed and necessary revisions made.
Ms. Nober stated that Commissioner Murphy could not attend today’s meeting to discuss the drafts of possible regulatory exemptions prepared by the Legal Division. She said that Commissioner Murphy had concerns as to whether section 7 should apply to licenses. She noted that Commission precedent has made a distinction between licenses, which are not considered contracts for section 7, and other types of agreements, such as leases, which are contracts. She stated that because the Commission has already addressed this issue, the license issue is not something that needs to be addressed in an exemption.
Ms. Nober stated that she believes the Commission should not adopt a regulation that would apply just to one person, and said that the staff’s approach was to draft language that would apply to all public employees, and not just elected officials. She urged the Commission to strongly consider the Draft C exemption, since it would apply to a broader range of people, and is consistent with the purpose of section 7, which is to prevent a public employee from using an “inside track” to obtain public contracts.
Ms. Nober said that if the Commission were to decide that section 7 would need to be completely revised, then that should be done by the Legislature.
Ms. Nober stated that the next Commission meeting is scheduled for Thursday, November 21, 2013 at 12:30 p.m.
PUBLIC EDUCATION DIVISION MATTERS
Public Education and Communications Division Chief David Giannotti presented his report of Public Education Division activities for September 2013. Mr. Giannotti stated that a functional adjustment by the Department of Revenue to the online training programs has drastically reduced the volume of help-desk calls coming into the division.
The Commission had no questions.
LEGAL DIVISION MATTERS
Petition for a Regulatory Exemption
General Counsel Deirdre Roney presented a memorandum and four drafts of a possible regulatory exemption to section 7. Ms. Roney explained that staff created the drafts to address some of the issues raised in a petition to the Commission by 12 individuals concerning state elected officials who have financial interests in contracts made with the state. Ms. Roney said that the Commission denied the petition at its September meeting, but directed staff to draft language for a possible new regulatory exemption.
Commissioner Trach asked Ms. Roney what the procedure would be for the Commission to adopt a regulatory exemption, if it chooses to go forward with one of the drafts or to otherwise direct the staff to draft another regulatory exemption. Ms. Roney explained that if the Commission approves a draft and directs staff to commence the rule-making process, the Commission is required to give notice to the Local Government Advisory Committee. The Commission would also either provide an opportunity for public comment or hold a public hearing, or it could choose to do both. Prior public notice will be required. Following the comment period and/or the public hearing, the Commission may make further changes to the draft before considering it for a vote.
Following discussion, the Commission agreed by consensus to continue the matter to the November meeting.
Updated Advisory on Rule of Necessity
Ms. Roney presented a revised version of Advisory 05-05: The Rule of Necessity, which includes updated information on how the Rule of Necessity applies to those serving in individual elected positions, such as mayor or governor, and further explains the requirements for elected boards or individuals in order to invoke the Rule of Necessity. Chairman Swartwood stated the examples in the amended Advisory are helpful. Following discussion by the Commission, on the motion of Commissioner Quinlan, seconded by Commissioner Mangum, the Commission voted 4-0 to approve the amended advisory.
Legal Division Metrics
Ms. Roney presented the following Legal Division metrics for September 2013.
- Written advice. In September 2013, the Legal Division answered by letter or email 21 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
September 2012 (same month last year): 29
August 2013 (previous month): 28
- Oral advice. During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 427 state, county and municipal officials.
For comparison: 2008 monthly average (pre Ethics Reform): 280
2010 monthly average (post Ethics Reform): 450
September 2012 (same month last year): 345
August 2013 (previous month): 425
- Review of municipal letters. The Legal Division reviewed 3 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
September 2012 (same month last year): 4
August 2013 (previous month): 9
- Backlog. As of today, there are 15 pending requests for written advice that are more than 30 days old, the oldest of which was received on May 15, 2013. The Legal Division has a total of 42 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. Chairman Swartwood asked whether a new hearing officer had been assigned in In Re Kathryn Christopher, and Commissioner Trach said he would serve as the hearing officer.
Theresa Lord Piatelli v. SEC. On October 3, 2013, the Supreme Judicial Court denied Piatelli’s Application for Further Appellate Review.
ENFORCEMENT DIVISION MATTERS
Investigations Unit Metrics
Enforcement Division Deputy Chief, Investigations Katherine Gallant presented a report of the Investigations Unit activities in September 2013. The Commission had no questions.
Enforcement Division Chief Stephen P. Fauteux presented a report of attorney metrics, reflecting the division attorneys’ current case load. He stated that this new report will be presented to the Commission monthly. The Commission had no questions.
At 1:19 p.m., on the motion of Chairman Swartwood, seconded by Commissioner Quinlan, 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, disposition agreements, public and private education letters, advisory opinions and deliberations.
Chairman Swartwood yes
Commissioner Mangum yes
Commissioner Trach yes
Commissioner Quinlan yes
Chairman Swartwood stated that the Commission would reconvene in public session following the executive session.
At 2:09 p.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 Mangum, Commissioner Trach, and Commissioner Quinlan. Commissioner Murphy was absent. 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 and some Deputy Division Chiefs. The Commissioners discussed this information and their views of Ms. Nober’s performance.
At 2:25 p.m., on the motion of Chairman Swartwood, seconded by Commissioner Quinlan, the Commission voted 4-0 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.
Chairman Swartwood yes
Commissioner Mangum yes
Commissioner Trach yes
Commissioner Quinlan yes
Chairman Swartwood stated that the Commission will not reconvene in public session after the executive session.
LIST OF DOCUMENTS USED AT THIS MEETING
- Agenda for the Commission Meeting of October 17, 2013.
- Minutes of the State Ethics Commission Meeting for the September 19, 2013 Public and Executive Session.
- Memorandum dated October 10, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division activities for September 2013.
- Memorandum dated October 10, 2013 from Deirdre Roney to the Commission setting forth Legal Division matters for the meeting.
- Memorandum dated October 10, 2013 from Deirdre Roney to the Commission regarding draft exemptions from G.L. c. 268A, § 7 responsive to the petition for a regulatory exemption submitted pursuant to G.L. c. 30A, § 4.
- Draft Exemption A: 6.26 – Exemption Permitting Public Employees to Have Direct or Indirect Financial Interests in Contracts with Public Agencies at the Same Level of Government that Employs Them in Certain Circumstances.
- Draft Exemption B: 6.26 – Exemption Permitting Public Employees to Have Direct or Indirect Financial Interests in Contracts with Public Agencies at the Same Level of Government that Employs Them in Certain Circumstances.
- Draft Exemption C: 6.26 – Exemption Permitting Public Employees to Have Direct or Indirect Financial Interests in Contracts with Public Agencies at the Same Level of Government that Employs Them That Pre-date Their Election or Appointment, Provided that Certain Restrictions Are Observed.
- Draft Exemption D: 6.26 – Exemption to Permit Public Employees to have Financial Interests in Contracts with Public Agencies at the Same Level of Government that Employs them for the Use of Specialized Facilities or Properties Owned or Controlled by those Public Agencies in Certain Circumstances.
- Draft of amended Advisory 05-05: The Rule of Necessity.
- Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
- Memorandum dated October 8, 2013 from Katherine Gallant to the Commission providing the Enforcement Division Complaint Intake Report.
- Report of Enforcement Divisions Unit Metrics and Attorney Metrics.
- Executive Director Performance Evaluation blank form.
Public Education and Communications
Division Deputy Chief