May 17, 2018 State Ethics Commission Meeting Minutes- Public Session

MEETING CONVENED

Chairman Barbara A. Dortch-Okara called the meeting to order at 9:06 a.m.  Also in attendance were Vice Chairman David Mills, Commissioner Thomas J. Sartory, Commissioner Maria Krokidas, and Commissioner R. Marc Kantrowitz.

APPROVAL OF MEETING MINUTES

On the motion of Commissioner Kantrowitz, seconded by Commissioner Mills, the Commission voted 5-0 to waive the reading and approve the public and executive session minutes of the April 19, 2018 Commission meeting.

EXECUTIVE DIRECTOR’S REPORT

Executive Director David A. Wilson presented his monthly report.

Personnel

Mr. Wilson reported that first- and second-round interviews have been completed for the General Counsel/Legal Division Chief position. Eleven staff members have participated in a total of 23 interviews. The field of candidates has been narrowed to three or four candidates. The remaining candidates will be asked to submit formal applications, writing samples, and references.

Mr. Wilson said it would be helpful to have one or two Commissioners participate in a final round of interviews in early June. Commissioner Mills and Chairman Dortch-Okara indicated they would likely be available. The special Commission meeting that had been tentatively scheduled for May 31 in order to have the final candidate interviewed by the full Commission will not be held because the selection process is still ongoing.

Mr. Wilson said his goal is to have the finalist for the General Counsel/Legal Division Chief position selected in time for the finalist to appear before the full Commission at the June 28 Commission meeting.

Budget

Mr. Wilson invited Government Affairs Officer Robert Milt to present an update on the FY 2019 budget. Mr. Milt reported that since the last Commission meeting, the House of Representatives passed a budget bill that included the same level of funding for the Commission as the House Committee on Ways and Means’ budget proposal. On May 10, the Senate Committee on Ways and Means adopted the Commission’s funding request in its budget recommendation. None of the budget amendments that have been filed would adjust the Commission’s funding level. Once the Senate passes a budget bill, a legislative conference committee will reconcile differences between the House and Senate budget bills. Mr. Milt expects that the Governor will sign the final FY 2019 budget in early July.

Office Improvements

Mr. Wilson provided an update on improvements to the Commission’s office space. Two new workstations have been designed and ordered. Mr. Wilson hopes to have the new workstations installed in June.

Next Meeting

Mr. Wilson noted that the next Commission meeting is scheduled for June 28 at 9 a.m.

COMPENSATION FOR MANAGERS AND OTHER STAFF NOT PAID ACCORDING TO NAGE UNIT 6 CBA

Mr. Wilson provided an update on compensation for managers and other staff who are not paid according to the National Association of Government Employees Unit 6 collective bargaining agreement. On May 11, NAGE Unit 6 membership approved a new collective bargaining agreement that includes pay increases that will likely go into effect before the end of the current fiscal year, pending approval of funding by the Legislature. At its April meeting, the Commission approved an across-the-board pay increase of slightly more than 2 percent for Commission staff, excluding the Executive Director, who have the requisite length of service and are not compensated according the NAGE Unit 6 CBA. That increase went into effect with the most recent week’s payroll.

Mr. Wilson said that, in addition to a cost of living adjustment, he was asking for the Commission’s approval of one-time merit-based bonuses (or retention payments) for select employees who, in his judgment, perform at a high level and are comparatively underpaid. The payments would not exceed $12,000 for all staff.

After discussion, on the motion of Commissioner Krokidas and seconded by Commissioner Sartory, the Commission voted 5-0 to authorize the Executive Director to award, in the current fiscal year, at his discretion, one-time merit-based bonuses, in total not to exceed $12,000, to selected employees whose compensation for FY 2018 was substantially less than what their work on behalf of the Commission merited in relation to their peers as determined by the Executive Director based on articulated criteria.

PUBLIC EDUCATION DIVISION REPORT

Mr. Wilson presented the monthly Public Education Division report in the absence of Public Education and Communications Division Chief David Giannotti.

Commissioner Sartory asked about education and training requirements for municipal employees, and whether they receive summaries of the conflict of interest law. Mr. Wilson responded that summaries of the conflict of interest law are distributed locally to municipal employees.

Commissioner Sartory also asked whether recent website analytics issues have been resolved. Mr. Wilson replied that Mr. Giannotti has been in contact with Mass.gov website administrators, but that the issues remain.

LEGAL DIVISION MATTERS

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

Legal Division Metrics for April 2018

Ms. Duca presented the following Legal Division metrics for April 2018.  No backlog of requests more than 30 days old.

• Written advice.  The Legal Division answered by letter or email 81 written requests for advisory opinions under G.L. c. 268A and c. 268B.

          For comparison:          April 2017 (same month last year):                            50

                                               March 2018 (previous month)                                    79                  

• Oral advice.  The Legal Division attorneys provided advice by telephone or on a walk-in basis in response to 435 requests for advice from state, county and municipal officials.

          For comparison:          April 2017 (same month last year):                            517

                                               March 2018 (previous month):                                   486                    

• Review of municipal letters.  Division staff reviewed 7 letters issued by city solicitors/town counsel pursuant to G.L. c. 268A, § 22 and 930 CMR 1.03.

          For comparison:          April 2017 (same month last year):                            0

                                               March 2018 (previous month):                                   2

• Backlog.  As of May 9, the Division has 0 pending requests for written advice that are more than 30 days old.  There are 10 pending requests for written advice.

Statements of Financial Interests (SFI)

Ms. Duca reported that the SFI Team sent reminders about the filing deadlines to filers and liaisons and responded to an increasing number of inquiries from filers leading up to the deadlines. She noted that the technical issue in the SFI system relating to the calculation of the statutory 10-day grace period was resolved. The SFI Team contacted filers who missed the May 1 filing deadline and worked with them to get their SFIs filed before the end of the grace period. Required filers with no record of an email address in the electronic filing system were being sent notices by mail. The filing deadline for elected officials is May 29.

The SFI Team also prepared a list of desired changes to the SFI system and asked the vendor for an estimate and an assessment of whether the work can be completed prior to the mandatory deadline of June 30, 2018. Staff and the vendor are working to reach an agreement on a post-production warranty for any such work.

Adjudicatory Matters

Ms. Duca presented the hearing and pre-hearing conference schedule and reported that a pre-hearing conference in In Re MacGilvray, Docket No. 18-0001, has been scheduled for May 23 at 11:30 a.m.

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.

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, and as of May 9, 2018, he had not done so.

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 which was heard by the court (Kenton-Walker, J.) on April 30, 2018. The Commission is waiting for a decision from the court on the Motion.

Miscellaneous Matters

Ms. Duca reported that she conducted a presentation on the conflict of interest law and financial disclosure law as part of the Judicial Ethics Training for new judges held in Worcester on April 12, 2018.

PROCESS FOR THE EVALUATION OF THE EXECUTIVE DIRECTOR

Acting General Counsel Pauline Nguyen presented information about the Commission’s evaluation process for the Executive Director. Ms. Nguyen said the current personnel manual leaves many details of the process open. In the past, the Commission would create an ad hoc committee of one or two commissioners to meet with Division Chiefs to receive feedback on the performance of the Executive Director. The ad hoc committee would present its report in public session before the whole Commission would enter executive session to draft its evaluation of the Executive Director. The evaluation was typically done in the fall. Ms. Nguyen recommended that the Commission give other staff an opportunity to offer input as well.

Chairman Dortch-Okara said that when the Commission decides to begin the evaluation process, the chair of the Human Resources Subcommittee and a volunteer would likely comprise the ad hoc evaluation committee. The Division Chiefs would be required to meet with the ad hoc committee; and other staff would have the option to meet with the ad hoc committee. Commissioner Krokidas suggested that when it is time to discuss salary, the Commission should examine the salaries of other agency executives. Chairman Dortch-Okara said the Commission will revisit the issue of the Executive Director’s evaluation in June.

ENFORCEMENT DIVISION MATTERS

Investigations Unit Metrics Report

Investigations Director Paul Murray presented the Enforcement Intake Metrics for May 2018.

EXECUTIVE SESSION

At 10:01 a.m., on the motion of Chairman Dortch-Okara, seconded by Commissioner Kantrowitz, the Commission voted 5-0 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 reports, a supplemental summons authorization request, disposition agreements, and advisory opinions, and deliberations in adjudicatory matters.

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 May 17, 2018.

2. Minutes of the State Ethics Commission Meeting of April 19, 2018 Public and Executive Sessions.
    
3. Memorandum dated May 10, 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 May 10, 2018 from Acting Legal Division Chief Lauren E. Duca to the Commission setting forth Legal Division matters for the May 17, 2018 meeting.
    
5. Memorandum of Decision and Order on Cross-Motions for Judgment on the Pleadings in McGovern v. State Ethics Commission.
    
6. State Ethics Commission’s Opposition to Defendant’s Motion for Rule 17 Summons of Records from State Ethics Commission in Commonwealth v. Langelier.
    
7. Calendar of Hearing Dates in pending Commission Adjudicatory Proceedings.
    
8. Report of Enforcement Division Intake Metrics.

Respectfully submitted,

Gerry Tuoti

Public Information Officer