September 20, 2018 State Ethics Commission Meeting Minutes - Public Session

MEETING CONVENED

Chairman Barbara A. Dortch-Okara called the meeting to order at 9:05 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 Krokidas, the Commission voted 5-0 to waive the reading and approve the public session, executive session and executive session - adjudicatory minutes of the August 2, 2018 Commission meeting.

EXECUTIVE DIRECTOR’S REPORT

Executive Director David A. Wilson presented his monthly report.

Personnel

Mr. Wilson welcomed General Counsel/Legal Division Chief Eve Slattery to her first Commission meeting since being appointed General Counsel/Legal Division Chief.

Mr. Wilson reported that Investigations Director Paul Murray resigned effective September 14^th after more than 10 years with the Commission. Mr. Wilson said he is grateful to Mr. Murray for his years of service. Mr. Wilson said the Enforcement Division intends to hire a new investigator to fill the vacancy created by Mr. Murray’s departure, but will wait before making any decisions regarding the Investigations Director job title.

Mr. Wilson told the Commission that Special Investigator Timothy Gravel will take a temporary leave beginning in early October for training with the Air Force National Guard. Mr. Gravel is expected to return in June. Mr. Wilson said that while Mr. Gravel will be missed during his leave, the agency is proud to have a staff member provide this important national service.

Mr. Wilson informed the Commission that Public Education and Communications Division Chief David Giannotti is temporarily assisting the Enforcement Division by generously volunteering to work as an investigator for the division one day a week.

Mr. Wilson provided an update on the two open attorney positions, one in the Legal Division and the other in the Enforcement Division. He reported that the job postings have been posted on the MassCareers website, advertised in Lawyers Weekly, and submitted to the career services offices of six Boston area law schools and to eight women’s or minority bar associations. He said more than 50 candidates have already applied, and that the closing date to submit cover letters and resumes is October 5^th. Mr. Wilson said he hopes to fill the positions by November. He said the Commission is fortunate to have received funding in the current budget to expand the staff.

Budget

Mr. Wilson told the Commission that Chief Financial Officer Alice Wu and Government Affairs Officer Robert Milt submitted the Commission’s Fiscal Year 2019 spending plan to the Executive Office of Administration and Finance on September 4^th. Mr. Wilson said the spending plan reflects the Commission’s priorities, including training for administrative staff and attorneys and funding for the new Enforcement Counsel position, which will return the Enforcement Division to four attorneys, the established staffing level prior to Fiscal Year 2014. Mr. Wilson said his transmittal letter to the Executive Office of Administration and Finance reflected that the Commission greatly appreciates the Administration’s support for the new Enforcement Counsel position, which will enhance public confidence in government through more timely resolution of complaints.

Mr. Wilson said the Fiscal Year 2020 budget request will be due in late November and that the budget team is working on determining the Commission’s needs in Fiscal Year 2019 and Fiscal Year 2020. He said that he decided, in consultation with Ms. Wu and Mr. Milt, to have Division Chiefs become more involved in planning spending and receive monthly budget reports.

Office Improvements

Mr. Wilson said the installation of two new work stations is complete now that an issue involving the door on one of the stations has been resolved. He said the new work stations will provide additional space for interns in the future.

New Commissioner

Mr. Wilson said that when a Commission Chair’s term expires, the Chair automatically continues serving until a successor has been appointed. He said he has been in contact with the office of the Governor’s Legal Counsel regarding the appointment of a new Commissioner.  Mr. Wilson said his understanding is that the Governor’s Office is aware that Chairman Dortch-Okara’s term expires in September 2018 and is working on the appointment of a new Commissioner.

Upcoming Events

Mr. Wilson said the Council on Governmental Ethics Laws (COGEL) annual conference will be held December 9-12^th in Philadelphia. He said several staff members have expressed strong interest in attending. The cost to attend the conference will be approximately $1,500 per person. Mr. Wilson said he attended last year’s COGEL conference in Toronto with Chairman Dortch-Okara, Enforcement Division Chief Monica Brookman, and Investigations Director Paul Murray. He said he hopes the Commission can send a slightly larger delegation to the 2018 conference.

Next Meeting

Mr. Wilson noted that the next Commission meeting is scheduled for Thursday, October 18^th at 9:00 a.m.

Chairman Dortch-Okara said that given she was presiding over her last official meeting before the end of her term, she wished to offer some reflections. She said serving on the Commission has been a wonderful experience and that she has been impressed by the staff’s dedication and quality work. Chairman Dortch-Okara described recent press coverage of reforms that Northern Essex Community College has proposed following the Commission’s enforcement action against former NECC Police Academy Director Thomas Fleming as an example of the type of lasting positive changes that can result from the Commission’s work.

PUBLIC EDUCATION DIVISION REPORT

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

Mr. Giannotti congratulated Chairman Dortch-Okara on a successful term.  Mr. Giannotti then told the Commission he has nine conflict of interest law seminars scheduled in September, seven in October, and nine in November. He said his goal is to conduct more than 70 seminars annually.

Mr. Giannotti told the Commission that Information Technology Specialist Tony Webb recently worked with Adobe to add coding to online forms on the Commission’s website to make them easier for users to submit electronically.

LEGAL DIVISION MATTERS

General Counsel/Legal Division Chief Eve Slattery reported on the activities of the Legal Division. She said that since joining the Commission in early august, she has been trained by staff and began working as Attorney of the Day in September on a rotating basis. Ms. Slattery said she has a deep appreciation for the Legal Division’s work.

Legal Division Metrics for June 2018

Ms. Slattery presented the following Legal Division metrics for July and August 2018. 

• Written advice.  The Legal Division answered by letter or email 50 (July) and 46 (August) written requests for advisory opinions under G.L. c. 268A and c. 268B.

          For comparison:         July 2017 (same month last year):                              70
                                              August 2017 (same month last year):                         76
                                               June 2018 (previous month):                                      64

• Oral advice.  The Legal Division attorneys provided advice by telephone or on a walk-in basis in response to 282 (July) and 453 (August) requests for advice from state, county and municipal officials.

          For comparison:          July 2017 (same month last year):                              497 
                                               August 2017 (same month last year):                         377 
                                               June 2018 (previous month):                                      409

• Review of municipal letters.  Division staff reviewed 3 (July) and 6 (August) letters issued by city solicitors/town counsel pursuant to G.L. c. 268A, § 22 and 930 CMR 1.03.

          For comparison:          July 2017 (same month last year):                              3                     
                                               August 2017 (same month last year):                         1         
                                               June 2018 (previous month):                                      2

• Backlog.  As of today, the Division has 3 pending requests for written advice that are more than 30 days old; the oldest are from August 2018.  There are a total of 16 pending requests for written advice.

Adjudicatory Matters

Ms. Slattery presented the hearing and pre-hearing conference schedule. She said the MacGilvray matter scheduled is scheduled for a hearing in October, with Commissioner Krokidas serving as hearing officer.

Litigation Matters

Ms. Slattery said she has been designated as the Special Assistant Attorney General for the Commission, taking over that role from Mr. Wilson.

McGovern v. State Ethics Commission:  Hampden Superior Court Civil Action No. 1679CV00082.  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 pleadings and affirming the Commission’s decision.  On May 25, 2018, McGovern filed a Notice of Appeal from the Superior Court’s decision.  On July 3, 2018, McGovern filed a Notice pursuant to Mass. R. App. P. 9(c)(2)(iii) certifying that he does not intend to order the transcript regarding the judgment in this case.  McGovern then filed a Civil Appeal Entry Form and Civil Docketing Statement. 

Appeals Court Docket No. 2018-P-1060.  The Commission received notice of entry of the case in the Appeals Court on July 24, 2018.  On September 4, 2018, McGovern filed a Motion for Enlargement of Time Within Which to File His Brief and Record Appendix, which the Commission assented to.  On September 5, 2018, the Appeals Court granted McGovern’s Motion to extend the date for filing his brief and appendix to October 11, 2018.  

Hansen v. State Ethics Commission: Norfolk Superior Court Civil Action No. 1782CV01384. On November 20, 2017, Howard Hansen served an appeal on the Commission, seeking judicial review pursuant to G.L. c. 30A of the Commission’s Decision and Order finding that he had violated various provisions of the conflict of interest law.  Although the court gave him notice on June 6, 2018 that it would dismiss the appeal if Hansen failed to file a motion for judgment on the pleadings within 30 days, he did not file such a motion.  On August 10, 2018, the Superior Court entered a Judgment of Dismissal on the grounds that Hansen failed to prosecute the appeal.

McClure v.  State Ethics Commission:  Lowell Superior Court Civil Action No. MICV2013-04186-L.  On August 2, 2013, the Commission issued a decision and order in In re McClure finding that Richard McClure repeatedly violated G.L. c. 268A, § 17, and assessed a civil penalty of $5,000 for those violations.  McClure then sought judicial review pursuant to G.L. c. 30A.  On November 27, 2015, the court issued a decision and order denying McClure’s motion for judgment on the pleadings and affirming the Commission’s decision.  On July 18, 2018, McClure paid his civil penalty.  

EVALUATION OF THE EXECUTIVE DIRECTOR

Chairman Dortch-Okara stated that the evaluation of the Executive Director would be conducted in public session, but requested that all staff, except for Mr. Wilson, Ms. Slattery, and Commission Ombudsman Candies Pruitt-Doncaster, leave the room during the evaluation. All other staff left the room from 9:50 to 11:46 a.m.

The Chairman deferred to the members of the ad hoc committee, Commissioner Mills and Commissioner Sartory, to lead the discussion of the Executive Director’s evaluation for the relevant time period of February 17, 2017 to June 30, 2018.

Commissioner Mills and Commissioner Sartory informed the commissioners of the feedback they received during their recent interviews with staff regarding Mr. Wilson’s performance and discussed his self-evaluation. They then led a discussion of Mr. Wilson’s performance including a review of his core competencies and major job responsibilities. 

On the motion of Commissioner Dortch-Okara, seconded by Commissioner Kantrowitz, the Commission voted 5-0 to delegate to the ad hoc committee the preparation and signing of the Executive Director’s written evaluation on behalf of the Commissioners. 

ENFORCEMENT DIVISION MATTERS

Investigations Unit Metrics Report

Enforcement Division Chief Monica Brookman presented the Enforcement Intake Metrics for July and August 2018. She said the Enforcement Division’s initial goal for the current fiscal year was to reduce the backlog of complaints; however, now, given the recent and impending departures of division staff members, such a reduction would be challenging. Ms. Brookman said she is currently reviewing internal procedures to develop new methods to reduce the backlog, as well as to and prioritize those cases that could potentially be resolved publicly.

EXECUTIVE SESSION

At 11:48 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, a report on preliminary inquiries, an amended preliminary inquiry recommendation, preliminary inquiry recommendations, summons authorizations, 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 September 20, 2018
    
2. Minutes of the State Ethics Commission Meeting of August 2, 2018 Public, Executive, and Executive – Adjudicatory Matters Sessions
    
3. Memorandum dated September 14, 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 September 13, 2018 from General Counsel/Legal Division Chief Eve Slattery to the Commission setting forth Legal Division matters for the September 20, 2018 meeting
    
5. Calendar of Hearing Dates in pending Commission Adjudicatory Proceedings

6. Report of Enforcement Division Intake Metrics
    
7. State Ethics Commission Performance Evaluation Form for Executive Director David A. Wilson Evaluation Period: 2/17/17 to 6/30/18 (blank form)

Respectfully submitted,

Gerry Tuoti
Public Information Officer

Eve Slattery
General Counsel/Legal Division Chief