MINUTES OF THE STATE ETHICS COMMISSION MEETING
September 19, 2013

One Ashburton Place
10th Floor, Human Resources Division
Video Conference Room
Boston, MA    02108

PUBLIC SESSION

 

MEETING CONVENED

Chairman Charles B. Swartwood, III called the meeting to order at 12:30 p.m.  Also in attendance were Commissioners Paula Finley Mangum, Martin F. Murphy, William J. Trach and Regina L. Quinlan.  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 Murphy, seconded by Commissioner Quinlan, the Commission voted 5-0 to waive the reading and approve the minutes of the August 2, 2013 public and executive sessions.

MEETING SCHEDULE

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 Trach, the Commission voted 5-0 to change the date of regular Commission meetings from the 3rd Thursday of every month at 9:00 a.m. to the 3rd Thursday of every month, with meetings to begin at 12:30 p.m.  This vote superseded the August 2, 2013 vote of the Commission regarding its meeting schedule.  

EXECUTIVE DIRECTOR’S REPORT

Personnel Matters

Executive Director Karen L. Nober reported that personnel evaluations for Commission staff were nearly finalized, and she will provide the Commissioners with her materials soon.

Ms. Nober stated that Chief Financial Officer Michael Memmolo and Enforcement Division Deputy Chief – Investigations Katherine Gallant have been accepted to participate in the Commonwealth Management Certificate Program.  The program, which will be held one day per month from October to May, is designed to help managers develop their management and professional skills.  This is the first year the Commission is participating in the program.  Because there is a tuition cost associated with the program, the Commission will only be able to send two managers to this year’s program, though Ms. Nober stated she would like other managers to participate in future years.

Ms. Nober announced that Legal Division Staff Counsel Norah Mallam had her baby boy at the end of August, and said that both Ms. Mallam and her son are doing well.

Spending Plan

Ms. Nober stated that she has submitted the Commission’s spending plan for FY 2014 to the Executive Office for Administration and Finance, describing how we plan to spend our FY 2014 appropriation.  The spending plan also provides an opportunity to tell ANF about the Commission’s upcoming funding needs, such as replacing the outdated Statements of Financial Information filing application.  Ms. Nober stated she plans to meet with ANF, the Information Technology Division and members of the Legislature to brief them on the plan to upgrade the SFI filing application and seek their support.  

Advisory 13-1

Ms. Nober stated that General Counsel Deirdre Roney will discuss the latest version of Advisory 13-1:  Making and Receiving Job Recommendations during the Legal Division’s portion of the meeting.  She stated that the Commission will be asked to review and approve the revised draft, which provides clarification on a number of issues.  Ms. Nober said that she was pleased with the process undertaken to review the advisory and obtain feedback.  She said that the Advisory has been improved as a result of the revisions. 

Next Meeting

Ms. Nober stated that the next Commission meeting is scheduled for Thursday, October 17, 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 July and August 2013.  Mr. Giannotti stated there was a significant uptick in calls to the division, and thanked Division Deputy Chief Marisa Donelan for her assistance in managing more than 500 calls and emails during those months.

Mr. Giannotti also stated that the Department of Revenue has continued to provide assistance in resolving functional issues with the Online Training Programs.  Most recently, DOR staff updated the training programs to make them compatible with the latest version of Microsoft Internet Explorer, which has greatly reduced the number of help-desk calls to the division.

The Commission had no questions.

PETITION FOR THE ADOPTION OF A REGULATION

Pursuant to G.L. c. 30A § 4, the Commission considered a petition for the adoption of a regulatory exemption submitted by 12 individuals.  Chairman Swartwood made the following disclosures related to the petitioners, but stated that he is not biased by any of these relationships and he would therefore participate in the matter: Petitioner and former U.S. Rep. William Delahunt was the Chairman’s congressman; Petitioner and former federal Judge Nancy Gertner served with the Chairman on the federal court; Petitioner and former Ethics Commission member Jeanne Kempthorne served with the Chairman on the Ethics Commission, and state Senator Daniel Wolf is the Chairman’s state Senator, but he has not previously met the senator. 

Commissioner Mangum disclosed that she served on the Commission with former Commission member Kempthorne, and was employed with Petitioner Peter Sturges’ daughter, but that she was not biased by these relationships and would therefore participate in the matter. 

Commissioner Murphy disclosed the following:  He has known former Commission member Kempthorne for more than 20 years and considers her a friend; his law firm has hired Judge Gertner as an expert witness; and he serves on the Massachusetts Special Commission on Criminal Justice with Petitioner and state Representative Daniel Winslow.  Commissioner Murphy stated that he is not biased by these relationships and he would therefore participate in the matter.

Commissioner Quinlan stated that she has known Petitioners former Attorney General Francis X. Bellotti and Judge Elizabeth J. Dolan for a number of years and considers them friends, but that she is not biased by these relationships and would participate in the matter.     

Chairman Swartwood stated that this meeting was not a public hearing, and so there will be no opportunity for comments or testimony by the general public, but that the petitioners are invited to present the petition.  He stated that the Commissioners’ questions of petitioners, as well as any votes in the matter, will be held in public session.  The Commission will discuss investigatory matters and advisory opinions relating to section 7 of the conflict of interest law in executive session. He stated that any compliance issues related to advice provided to Senator Wolf will be handled confidentially and will not be addressed at this meeting.  If the Commission decides to go forward with a regulation, there will be hearings and a public comment period.

Attorney Carl Valvo, representing the petitioners, began his presentation on the petition at 12:40 p.m. and concluded at 1:24 p.m.  Petitioner and Executive Director of Common Cause Massachusetts Pamela H. Wilmot began her presentation at 1:25 p.m. and concluded at 1:31 p.m. Senator Wolf began his presentation at 1:32 p.m. and concluded at 1:37 p.m.  The petitioners’ presentation concluded at 1:37 p.m.

EXECUTIVE SESSION

At 1:38 p.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 and advisory opinions relating to section 7 of the conflict of interest law.

VOTE:                        
Chairman Swartwood                         yes                                          
Commissioner Mangum                      yes                                          
Commissioner Murphy                        yes                                          
Commissioner Trach                           yes                                          
Commissioner Quinlan                        yes      

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

MEETING RECONVENED

At 2:30 p.m., Chairman Charles B. Swartwood, III reconvened the meeting in public session.  Also in attendance were Commissioners Mangum, Murphy, Trach and Quinlan.  

PETITION FOR THE ADOPTION OF A REGULATION

Commissioner Murphy expressed his appreciation for the presentations made to the Commission concerning the petition.  He stated that in his view the Commission should deny the petition but commence a rulemaking process to develop an exemption regulation, and should direct staff to draft an exemption regulation that would address the pertinent issues.  He stated that the regulatory language proposed by the petitioners did not, in his view, adequately address those issues. 

Commissioner Murphy stated further that in his view the contracts between Cape Air and Massport were fundamentally different from the contracts at issue in other Commission cases involving G.L. c. 268A, § 7.  Those other cases involved situations where persons sought to obtain money from the state, and, in that situation, the existing exemptions from § 7 are sufficient.  The circumstances that gave rise to the petition were different because those contracts are more like licenses, in that the state must enter into the contract if certain eligibility requirements are met (like a license), and the party entering into the contract is not seeking taxpayer funds.  He considers the situation to be analogous to a law license, or the license held by the operator of a day care.  In the situation of a law license or a day care license, anyone who meets established eligibility criteria gets a license from the state.  Any potential exemption should focus on required contractual relationships that do not result in the person entering into the contract receiving taxpayer or governmental funds.  The Commission’s rulemaking should address those circumstances.  The exemption should include a requirement that the contractual relationship be available to all applicants who meet the objective eligibility criteria.

Commissioner Mangum stated that she agreed that the Commission should not grant the petition but instead should look at further rulemaking.  She stated that the Cape Air-Massport contracts are different.  She stated that she thought that the analogy between the Cape Air-Massport contracts and a law license is less apt than the analogy, also discussed by the Commission, between those contracts and the provision by the state of dorm rooms to a student whose parent is paying tuition, in that there is some limit on the availability of dorm rooms.  But she appreciates how the legal issues have been framed by the petitioners.

Commissioner Trach stated that he agreed with Commissioners Murphy and Mangum, and would deny the petition as written but commence a rule-making process.  He stated that the exemption in § 7(c) starts with the idea of competitive bidding, and that this suggests that the statute was intended to address situations where someone is seeking money from the state.  In his view, it is a different situation if a license provides someone the ability to do business or operate a business.  Commissioner Trach stated that he would not want to overrule the existing statutory exemptions, but that in his view the Massport contracts present a situation that was not contemplated by §7.  He would like the Commission to look at the situation further, and also obtain public comment.

Commissioner Quinlan stated that she agreed with the Commissioners who had spoken previously.  She stated that her concern is that, as proposed, the exemption set forth in the petition would affect only one person.  She would be uncomfortable making an exemption for one person.  She thinks that the Commission should conduct hearings to listen to persons who are for and against a proposed exemption so that the Commission can fully consider all viewpoints.

Chairman Swartwood stated that he would simply deny the petition.  In his view, the statute is clear.  The requirement that a legislator cannot have a financial interest in a state contract when he has an ownership interest in the contracting entity greater than 10% is the legislative intent.

After discussion by the Commission, on the motion of Commissioner Quinlan, seconded by Commissioner Murphy, the Commission voted 4-1, with Chairman Swartwood opposed, to deny the petition, but to commence the rule-making process and direct Commission staff to draft a new regulatory exemption.  Chairman Swartwood stated that he would deny the petition and not commence the rule-making process.

LEGAL DIVISION MATTERS

Update on Advisory 13-1: Making and Receiving Job Recommendations

General Counsel Roney presented a revised Advisory 13-1:  Making and Receiving Job Recommendations, for the Commission’s approval.  Chairman Swartwood suggested changes to further clarify language in the Advisory.  After discussion by the Commission, on the motion of Commissioner Trach, seconded by Commissioner Quinlan, the Commission voted 5-0 to approve the revised Advisory, as further amended at the meeting. 

Chairman Swartwood thanked the Legal Division for its work on the Advisory.   

Legal Division Metrics

Ms. Roney presented the following Legal Division metrics for July and August 2013.

July:               

  • Written advice.  In July 2013, the Legal Division answered by letter or email 47 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 2012 (same month last year):                   22                                    
                              June 2013 (last month):                                   35

  • Oral advice.  During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 419 state, county and municipal officials.

For comparison:    2008 monthly average (pre Ethics Reform):  280                              
                              2010 monthly average (post Ethics Reform):  450                              
                              July 2012 (same month last year):                   331                              
                              June 2013: (last month)                                   435

  • 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                              
                              July 2012 (same month last year):                   4                              
                              June 2013 (last month):                                   12

August:

  • Formal opinion.  The Legal Division issued one formal opinion in August 2013.
  • Written advice.  In August 2013, the Legal Division answered by letter or email 28 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 2012 (same month last year):             41

  • Oral advice.  During this same period, Legal Division attorneys provided legal advice by telephone or on a walk-in basis to 425 state, county and municipal officials.

For comparison:    2008 monthly average (pre Ethics Reform):  280                                        
                              2010 monthly average (post Ethics Reform):  450                                    
                              August 2012 (same month last year):             430

  • Review of municipal letters.  The Legal Division reviewed 9 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 2012 (same month last year):             8

  • Backlog.  As of today, there are 8 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 27 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.

Adjudicatory Matters

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

Litigation Matters

Theresa Lord Piatelli v. SEC, 2012-P-0612:  On August 14, 2013, the Appeals Court, in a Memorandum and Order pursuant to Rule 1:28, affirmed the judgment of the Superior Court dismissing Piatelli’s complaint seeking review of the Commission’s decision that she violated the law.  Piatelli has filed an Application for Further Appellate Review.  The Commission’s opposition has been filed.

ENFORCEMENT DIVISION MATTERS 

Investigations Unit Metrics

Ms. Gallant presented a report of the Investigations Unit activities in July and August 2013.  She stated that there has been an uptick in complaints.  Commissioner Mangum asked whether the reorganization of the Enforcement Division has been going well, and Ms. Gallant stated that it has.     

EXECUTIVE SESSION

At 3:00 p.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. 

VOTE:                        
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

  1. Agenda for the Commission Meeting of September 19, 2013.
  2. Minutes of the State Ethics Commission Meeting for the August 2, 2013 Public and Executive Session.
  3. Memorandum dated September 12, 2013 from David Giannotti to the Commission concerning Public Education and Communications Division activities for July and August 2013.
  4. Letter dated September 5, 2013 from Carl Valvo and Peter Sturges to the Commission concerning a petition for the adoption of a regulation.
  5. Petition dated Sept. 5, 2013 by Francis X. Bellotti, William D. Delahunt, Elizabeth J. Dolan, Nancy Gertner, Scott Harshbarger, Jeanne M. Kempthorne, James Roosevelt, Augustus F. Wagner, Jr., Pamela H. Wilmot, Daniel B. Winslow, Daniel L. Wolf and Thomas Zampino for the Adoption of a Regulation and Proposed Regulatory Exemption.
  6.  Memorandum dated September 12, 2013 from Deirdre Roney to the Commission regarding a petition pursuant to G.L. c. 30A § 4 by Senator Daniel Wolf.
  7. Memorandum dated September 12, 2013 from Deirdre Roney to the Commission setting forth Legal Division matters for the meeting.
  8. Draft Advisory 13-1:  Making and Receiving Recommendations for Public or Private Employment.
    1. Draft dated September 9, 2013.
    2. Draft dated September 16, 2013 with redlining.
    3. Draft dated September 16, 2013 without redlining.
  9. Calendar of Hearing Dates and Pre-Hearing Conferences in pending Commission Adjudicatory Proceedings.
  10. Memorandum dated September 12, 2013 from Katherine Gallant to the Commission providing the Enforcement Division Complaint Intake Report.

 

Respectfully submitted,

Marisa Donelan
Public Education and Communications
Division Deputy Chief