June 28, 2018 State Ethics Commission Meeting Minutes- Public Session

MEETING CONVENED

Chairman Barbara A. Dortch-Okara called the meeting to order at 9:09 a.m. Also in attendance were Vice Chairman David Mills, Commissioner Thomas J. Sartory, and Commissioner R. Marc Kantrowitz.

APPROVAL OF MEETING MINUTES

On the motion of Commissioner Kantrowitz, seconded by Commissioner Sartory, the Commission voted 4-0 to waive the reading and approve the public and executive session minutes of the May 17, 2018 Commission meeting.

EXECUTIVE DIRECTOR’S REPORT

Executive Director David A. Wilson presented his monthly report.

Personnel

Mr. Wilson reported that the final phase in the process of selecting a new General Counsel and Legal Division Chief had been completed, and that he had selected attorney Eve Slattery for the position, pending the Commission’s approval. Mr. Wilson said the four finalists for the position were all high-quality candidates. He thanked the staff and Commissioners who participated in the selection process.

Budget

Government Affairs Officer Robert Milt presented an update on the budget. He reported that since the Commission’s previous meeting, the Senate had passed its version of the Fiscal Year 2019 state budget, which included the $2.239 million in funding that the Commission had requested and that the House had approved in its budget bill. Mr. Milt said the Governor and the Legislature had passed an interim budget to keep the state funded through July, as the budget conference committee had not yet produced a FY 2019 budget to send to the Governor.

Office Improvements

Mr. Wilson reported that two new work stations were scheduled for installation in the Commission’s office on June 29.

Next Meeting

Mr. Wilson noted that the next Commission meeting is scheduled for August 2 at 9:00 a.m.

INTERVIEW OF FINALIST FOR GENERAL COUNSEL/LEGAL DIVISION CHIEF POSITION AND VOTE ON APPROVAL OF APPOINTMENT BY THE EXECUTIVE DIRECTOR

Mr. Wilson said that pursuant to Section 4.1 of the Commission’s Personnel Manual, the General Counsel is appointed by the Executive Director, subject to the prior approval of the Commission. Mr. Wilson introduced Eve Slattery to the Commission and requested that the Commission approve his appointment of her as General Counsel and Legal Division Chief. Ms. Slattery said she was honored to be selected and looked forward to working with Mr. Wilson, the Commissioners, and the Commission staff.

On the motion of Commissioner Mills, seconded by Chairman Dortch-Okara, the Commission voted 4-0 to approve Mr. Wilson’s appointment of Ms. Slattery as General Counsel and Legal Division Chief.

Commissioner Mills thanked Acting General Counsel Pauline Nguyen and Acting Legal Division Chief Lauren E. Duca for performing the duties of the General Counsel and Legal Division Chief on an interim basis over the past several months.

PUBLIC EDUCATION DIVISION REPORT

Public Education and Communications Division Chief David Giannotti presented the monthly Public Education Division report.

Mr. Giannotti discussed the conflict of interest law education and training requirements for public employees and reported that there was close to 100% compliance among the elected state and county employees for whom the Commission maintains records. Mr. Giannotti said that since 2009, he has had to reach out to approximately a dozen noncompliant state and county employees, and that each of those outreach efforts resulted in the employees complying with their education and training requirements. After discussion, the Commissioners agreed that Mr. Giannotti should maintain the current procedure rather than employing alternate methods to ensure compliance.

Mr. Giannotti also discussed the Commission’s website and reported that a new analytics tool would soon be available to staff.

LEGAL DIVISION MATTERS

Acting Legal Division Chief Lauren E. Duca reported on the activities of the Legal Division.   

Legal Division Metrics for May 2018

Ms. Duca presented the following Legal Division metrics for May 2018. 

• Written advice.  The Legal Division answered by letter or email 76 written requests for advisory opinions under G.L. c. 268A and c. 268B.

          For comparison:          May 2017 (same month last year):      75
                                               April 2018 (previous month)                 81          

• Oral advice.  The Legal Division attorneys provided advice by telephone or on a walk-in basis in response to 565 requests for advice from state, county and municipal officials.

          For comparison:          May 2017 (same month last year):     684
                                               April 2018 (previous month):              435                                   

• Review of municipal letters.  Division staff reviewed 4 letters issued by city solicitors/town counsel pursuant to G.L. c. 268A, § 22 and 930 CMR 1.03.

          For comparison:          May 2017 (same month last year):         4
                                               April 2018 (previous month):                  7

• Backlog.  As of June 20, 2018, the Division has 0 pending requests for written advice that are more than 30 days old.  There are 24 pending requests for written advice.

Statements of Financial Interests (SFI) Update

Ms. Duca reported that the SFI Team responded to a large volume of requests from filers seeking technical and legal assistance leading up to the May 1 filing deadline for appointed public employees and the May 29 filing deadline for elected public officials. The SFI system automatically sent formal notices of lateness to public employees who missed the May 1 deadline, providing them with a 10-day grace period to file without incurring any possible monetary penalty. The SFI Team sent notices by certified mail to filers without an email address in the SFI system and contacted filers who received notices to remind them to file before the end of the grace period. The SFI Team also worked with agency liaisons to try to locate former public employees who missed the May 1 deadline.

Ms. Duca said the SFI Team executed a change order with its vendor to do 10 updates and fixes to the current SFI filing system. The staff negotiated a warranty period for each item.

Adjudicatory Matters

Ms. Duca presented the hearing and pre-hearing conference schedule.

Litigation Matters

McGovern v. State Ethics Commission: Hampden Superior Court Civil Action No. 1679CV00082.  Ms. Duca reported that Edward McGovern sought judicial review pursuant to G.L. c. 30A of the Commission’s finding of violation against him.  On May 2, 2018, the court issued a decision and order denying McGovern’s motion for judgment on the proceedings and affirming the Commission’s decision. On May 25, 2018, McGovern filed a Notice of Appeal from the Superior Court’s decision. The Commission is awaiting notice from the court clerk that record has been assembled.

Hansen v. State Ethics Commission: Norfolk Superior Court Civil Action No. 1782CV01384. Ms. Duca reported that Howard Hansen seeks judicial review pursuant to G.L. c. 30A of the Commission’s finding of violations against him.  The appeal was served on the Commission on November 20, 2017.  The Commission filed the record on February 15, 2018.  Hansen had 30 days from the service of the record to file a motion for judgment on the pleadings, but did not do so. On June 6, 2018, the Superior Court issued a Notice of Dismissal for Lack of Prosecution of G.L. c. 30A Appeal. The Notice states that the case will be dismissed unless Hansen notifies the court, in writing, and within 30 days, that he has served a motion for judgment on the pleadings on the Commission.

Commonwealth v. Marcia Langelier: Worcester Superior Court Criminal Action No. 2013 WPCR 1134. The defendant Marcia Langelier filed a Motion for Rule 17 Summons of Records From the Commission Pursuant to M.R.C.P. 17(a)(2) and Commonwealth v. Lampron. The Motion sought the disclosure of records relating to a confidential investigation which the defendant believed the Commission had conducted of an individual who is expected to be the Commonwealth’s principal witness against her in that criminal matter. The Commission filed an Opposition to the Motion. On May 18, 2018, the court (Kenton-Walker, J.) issued its decision allowing the Motion, narrowing the scope of the request, and requiring that the documents be produced pursuant to a protective order because of the Commission’s statutory mandate to maintain confidentiality. The responsive documents were produced by the Commission and received by the court on June 7, 2018.

Miscellaneous Matters

Ms. Duca reported that Assistant General Counsel Kevin Larivee successfully defended a challenge to the Commission’s response to a public records request.

Commissioner Sartory asked if there is any analysis of which topics are the most common subjects of requests to the Legal Division for advice. Ms. Duca responded that the Commission’s current case management system does not have the ability to track that information. Mr. Giannotti said that, anecdotally, public employees attending his conflict of interest law seminars often have questions about gift restrictions, receiving event tickets from vendors, and receiving invitations to events. Mr. Wilson said he hopes to replace the case management system within the next couple of years with a new system that would allow staff to better analyze the types of requests for advice received by the Legal Division.

PROCESS FOR THE EVALUATION OF THE EXECUTIVE DIRECTOR

Acting General Counsel Pauline Nguyen presented an update on the Commission’s process for evaluating the Executive Director. In the past, an ad hoc committee would meet with the Division Chiefs, and the Executive Director would submit a self-evaluation. The findings would be presented to the Commission in public session, then the Commission would enter executive session to draft the evaluation.

After discussion, the Commission agreed that staff should be given the opportunity to offer input to the ad hoc committee, and that the Commission’s Ombudsman provide general feedback without breaching the confidence of any staff who may have brought an issue to the Ombudsman.

Commissioner Mills and Commissioner Sartory volunteered to serve on the ad hoc committee.

ENFORCEMENT DIVISION MATTERS

Investigations Unit Metrics Report

Enforcement Division Chief Monica Brookman presented the Enforcement Intake Metrics for May 2018.

EXECUTIVE SESSION

At 9:52 a.m., on the motion of Chairman Dortch-Okara, seconded by Commissioner Kantrowitz, the Commission voted 4-0 to enter executive session to discuss matters subject to the provisions of G.L. c. 30A, § 21, subparagraph (a)(7), and § 18, and G.L. c. 268B, §§ 3 and 4, including investigatory matters, cases deferred, preliminary inquiry recommendations, a preliminary inquiry report, summons authorization requests, and advisory opinions.

Chairman Dortch-Okara stated that the Commission would not reconvene in public session following the executive session.

VOTE:  Chairman Dortch-Okara    yes    
             Commissioner Mills           yes  
             Commissioner Sartory       yes  
             Commissioner Krokidas     yes 
             Commissioner Kantrowitz  yes  

LIST OF DOCUMENTS USED AT THIS MEETING

1. Agenda for the Commission Meeting of June 28, 2018
    
2. Minutes of the State Ethics Commission Meeting of May 17, 2018 Public and Executive Sessions
    
3. Memorandum dated June 22, 2018 from Public Education and Communications Division Chief David Giannotti to the Commission concerning the Public Education and Communications Division report for the meeting
    
4. Memorandum dated June 20, 2018 from Acting Legal Division Chief Lauren E. Duca to the Commission setting forth Legal Division matters for the June 20, 2018 meeting
    
5. Calendar of Hearing Dates in pending Commission Adjudicatory Proceedings
    
6. Findings and Order Allowing Motion for Production of Documents Pursuant to Rule 17(a)(2) in Commonwealth v. Langelier
    
7. Protective Order for Defense Counsel in the production of documents in Commonwealth v. Langelier
    
8. Determination by Supervisor of Records, dated May 29, 2018, regarding an appeal from the Commission’s response to a public records request
    
9. Report of Enforcement Division Intake Metrics

Respectfully submitted,

Gerry Tuoti

Public Information Officer