Section 1: Scope and Purpose
Section 4 of G.L. c. 268B authorizes the State Ethics Commission to investigate alleged violations of Chapters 268A and 268B. The Commission has adopted these internal Enforcement Procedures to guide the Commission staff in fulfilling its responsibilities to investigate alleged violations of the Conflict of Interest and Financial Disclosure Laws, and to facilitate the Commission’s role as the primary civil enforcement agency for violations of those laws. These procedures are intended to promote and ensure that investigations and prosecutions of allegations that may affect the rights and reputations of public employees are conducted in a fair and expeditious manner.
Section 2: Informal Investigations (Initial Staff Review)
The Enforcement Division’s Investigations Unit will review and investigate, as appropriate, any information in the nature of a complaint received by the Commission, which suggests a violation of Chapter 268A or 268B.The Enforcement Division staff may generate complaints through their reviews of media reports and other information. After an investigator conducts an initial review and informal investigation into allegations of violations of the Conflict of Interest and/or Financial Disclosure Laws, the Enforcement Division will decide to either: (1) close the complaint because no evidence of a violation has been found; (2) send the subject of the complaint a confidential educational letter because it appears that he or she may have committed a relatively minor violation; or (3) recommend to the Commission that it authorize a preliminary inquiry (formal investigation) into the allegations. Staff will recommend a preliminary inquiry when there is some reliable evidence to support the allegations, and if proven, the nature of the violations would warrant a public resolution.
Section 3: Formal Investigations (Preliminary Inquiry Stage)
A. Initiation and Notice of a Preliminary Inquiry
The Commission may initiate a preliminary inquiry upon the recommendation of the Enforcement Division. Within thirty (30) days of the commencement of the inquiry, the General Counsel will notify any person who is the subject of a preliminary inquiry in writing of the existence of such inquiry and the general nature of the alleged violation(s), including the specific provisions of law which may have been violated. The notice will indicate that the subject of the inquiry or his or her attorney will have the opportunity to discuss the inquiry with, or submit any information to, the Enforcement Division.
B. Conduct of a Preliminary Inquiry
The purpose of a preliminary inquiry is to obtain sufficient evidence to determine whether there is reasonable cause to believe a violation of G.L. c. 268A and/or G.L. c. 268B has occurred. The inquiry is conducted by an Enforcement Division attorney, with the assistance of other Enforcement Division staff, and is not an adjudicatory proceeding within the meaning of G.L. c. 30A, G.L. c. 268B, § 4, or 930 CMR 1.01(1)(c).
Pursuant to Chapter 268B, § 4(d), investigative summonses may be authorized in the course of any preliminary inquiry upon the affirmative vote of three members of the Commission. Summonses authorized by the Commission will be signed by the Enforcement Division attorney assigned to conduct the preliminary inquiry, and will be served in the same manner as summonses for witnesses in civil cases. The summons will specify the time and place for the attendance of the person, and what, if any, books and records are to be produced. Any notary, including an Enforcement Division investigator, may administer the oath to any person summonsed to give testimony but need not remain to hear the testimony. A person summonsed to produce records and documents may submit those records and documents electronically, by hand or by mail to the member of the Enforcement Division identified in the summons. Any testimony taken pursuant to a summons will be recorded either by mechanical means or by a stenographer. Any records or documents produced will be retained by the Commission staff. A Commission summons has the same force as an order issued by a justice of the Superior Court. Therefore, it must be obeyed in the same manner, and is subject to the same penalties in the event of default. A Commission summons may be quashed only upon motion of the summonsed party and by order of a justice of the Superior Court.
C. Role of Agency Counsel
Public employees summonsed to provide testimony in a Preliminary Inquiry may wish to be accompanied by counsel for their employing public agency, and public agency counsel may wish to be present. Note, however, that public agency counsel has no right to be present over the public employee’s objection; if the employee does not wish agency counsel to be present, the Enforcement Division will not allow agency counsel to remain in the interview. Enforcement Division staff will attempt to ascertain the witness’s wishes in advance of the interview.
If the public employee wishes agency counsel to be present during his or her testimony, and counsel is willing to represent the witness, counsel should note that there are potential issues under G.L. c. 268A, §§ 4 and 17, which prohibit public agency counsel from acting as an attorney for anyone other than their public agency in connection with any particular matter in which the state or municipality, or a state or municipal agency, has a direct and substantial interest, unless doing so is “in the proper discharge of his official duties.” Agency counsel wishing to accompany a public employee to an Enforcement Division interview is also responsible for ensuring that any such action is consistent with Rule 1.7(a) and other relevant provisions of the Massachusetts Rules of Professional Conduct.
In addition, there are also potential issues under G.L. c. 268A, § 23(b)(2)(ii), which prohibits the use of official position to confer unwarranted privileges of substantial value not properly available to similarly situated individuals. This provision of the Conflict of Interest Law may be implicated if public agency counsel provides legal representation in a Commission investigation to some agency employees but not others, at least absent any agency policy distinguishing among employees for purposes of representation and indemnification. If a question arises, agency counsel is responsible for seeking advice in advance from the Legal Division of the State Ethics Commission to determine whether agency counsel’s presence during investigative interviews would violate §§ 4, 17, or 23(b)(2). Agency counsel’s presence during such interviews will not violate those sections if it is the usual practice of the particular agency or municipal counsel’s office, in the discharge of their official duties, to represent agency employees or former agency employees at depositions, trials, investigative interviews, or other proceedings where testimony is taken. Counsel accompanying a public employee to provide sworn testimony in a Preliminary Inquiry will be asked to verify that this is the agency’s or municipal counsel’s office usual practice at the beginning of the interview on the record.
D. Notice to the Subject of the Inquiry
At the conclusion of each preliminary inquiry, the Enforcement Division attorney will submit to the Commission a written preliminary inquiry report (“PI Report”) summarizing the evidence developed in the course of the inquiry, and recommending a resolution or further enforcement action, as appropriate, as detailed below.
Prior to submitting a PI Report to the Commission regarding an alleged violation of G.L. c. 268A, the Enforcement Division attorney will notify the subject in writing of the date the Commission is expected to meet to consider whether to find reasonable cause to believe that a violation of G.L. c. 268A has occurred. This notice will be sent by first class mail no later than thirty (30) days prior to the meeting in question, and also by email, if feasible. The subject may submit a brief written memorandum, generally not exceeding five (5) pages in length, to the Commission regarding the allegations. Any such written submission must be received by the Commission at least ten (10) days before the meeting at which it will consider the matter.
This 30-day notice requirement shall not apply if its application would cause the matter to be time-barred under G.L. c. 268B, § 4(c) or 930 CMR 1.02(8). In such instances, the Enforcement Division attorney shall notify the subject orally of his or her intention to submit a PI Report and of the statute of limitations issue as soon as is practicable, and the attorney will also send notice by email, if feasible. If the subject requests more time to file a written response, the Enforcement Division will ordinarily request that the subject enter into an agreement tolling the applicable statute of limitations as a condition of such extension of time. If the parties are unable to reach an agreement, the matter may be submitted to the Commission for consideration.
E. Preliminary Inquiry Determination
After presentation by the attorney of the PI Report to the Commission, the Commission will determine whether there is reasonable cause to believe that a violation of G.L. c. 268A and/or c. 268B has occurred. All decisions and actions by the Commission require three affirmative votes. The Commission may resolve a preliminary inquiry in one of the following ways:
- No Finding of Reasonable Cause (Confidential Resolution)
- Termination of Preliminary Inquiry: If the Commission does not find reasonable cause to believe that a violation of G.L. c. 268A and/or c. 268B has occurred, the Commission will vote to terminate the inquiry. The Enforcement Division Chief or his or her designee will so notify the subject of the inquiry in writing, and will also notify the complainant, if any, in writing. In some circumstances, the Commission may choose to send a confidential educational letter to the subject.
- Facts Sufficient to Find Reasonable Cause: In lieu of finding reasonable cause to believe that a violation of G.L. c. 268A or 268B has occurred and authorizing adjudicatory proceedings, the Commission may vote to find facts sufficient to find reasonable cause and authorize the issuance of a confidential compliance letter. The letter will identify the alleged violations and explain the application of the law to the specific facts at issue, and inform the subject that future violations may be resolved through a public proceeding. Confidential compliance letters may be authorized in cases where, although there are sufficient facts to warrant a finding of reasonable cause to believe a violation has occurred, the Commission believes it is appropriate to resolve the matter privately. Generally, a confidential compliance letter may be authorized when the violation does not involve willful misconduct, significant economic advantage, the misuse of position or confidential information, significant economic loss to the public, or the potential for serious impact on the public confidence in its officials.
- Finding of Reasonable Cause (Public Resolution)
- Adjudicatory Hearing: If the Commission finds reasonable cause to believe that a violation has occurred, it may vote to authorize an adjudicatory proceeding pursuant to 930 CMR 1.01.
- Disposition Agreement: Prior to, or after the commencement of, an adjudicatory proceeding, the Commission may vote to resolve a matter through a public disposition agreement entered into with the subject. In a disposition agreement, the subject must: (1) agree to pay a civil penalty and comply with such orders as may be specified in the agreement; and (2) admit to the findings of fact and conclusions of law found by the Commission.
- Public Education Letter: The Commission may also resolve a matter through the issuance of a public education letter that assesses no civil penalty but publicly reviews the alleged violations of law and explains the application of the law for preventative and educational purposes. A public education letter typically is authorized where the facts and alleged violations warrant a public resolution, but do not warrant the formality and expense of an adjudicatory proceeding. Generally, the Commission will authorize a public education letter when the violation: (1) involves a complex or novel legal issue; (2) is the type of violation that is likely to recur in the future; or (3) has been appropriately addressed by the employer but the conduct in question still warrants a public resolution. Such a letter may only be issued with the consent of the subject.
Section 4: Confidentiality
Except as specifically provided in G.L. c. 268B, § 4 and 930 CMR 3.01, all proceedings and records of the Commission relating to the initiation or conduct of any preliminary inquiry or initial staff review will be kept confidential by the Commission and the Commission staff. If the Commission votes and makes public a finding of reasonable cause and authorization of adjudicatory proceedings in accordance with G.L. c. 268B, § 4(c), the participants in the Commission proceeding shall no longer be bound by the requirements of 930 CMR 3.01(2), (3) and (4).
The identity of a complainant is confidential and may not be disclosed by the Commission or Commission staff, even if public adjudicatory proceedings are authorized. See 930 CMR 3.01(5).
Section 5: Referral of Evidence to Criminal Prosecutors
Where the Enforcement Division staff has evidence that may be used in a criminal proceeding, and disclosure of such evidence to a criminal prosecutor is permitted by G.L. c. 268B, § 4, the General Counsel may refer the evidence to the Attorney General’s Office, the United States Attorney’s Office, or a District Attorney of appropriate jurisdiction.
Section 6: Adjudicatory Proceedings
Adjudicatory proceedings authorized by the Commission will be initiated by an Order to Show Cause issued by the Enforcement Division. All adjudicatory proceedings will be conducted in accordance with 930 CMR 1.00. Before an Order to Show Cause is issued, an Enforcement Division attorney will inform the subject that the Commission has found reasonable cause to believe a violation of G.L. c. 268A and/or c. 268B has occurred and has authorized adjudicatory proceedings, and will provide the subject or his or her attorney an opportunity to discuss resolving the matter prior to initiation of a public adjudicatory hearing.
Section 7: Separation of Staff Functions
A. Prior to the Issuance of an Order to Show Cause
The Commission’s Enforcement Division is responsible for the investigation and prosecution of alleged violations of G.L. c. 268A or G.L. c. 268B. Prior to the issuance of an Order to Show Cause as set forth in Section 6 of these procedures, the General Counsel and his or her designee and Enforcement Division legal staff may review preliminary inquiry recommendations and preliminary inquiry reports for legal sufficiency prior to their submission to the Commission. The General Counsel and his or her designee and Enforcement Division legal staff may also review disposition agreements for legal sufficiency prior to their submission to the Commission. The General Counsel and Legal Division staff may share their comments with respect to the legal sufficiency of these documents with the Enforcement Division staff and the Executive Director. The Executive Director may review and comment on preliminary recommendations, preliminary inquiry reports and disposition agreements.
B. After the Issuance of an Order to Show Cause
After the Enforcement Division has issued an Order to Show Cause initiating an adjudicatory proceeding, Enforcement Division staff and Legal Division staff shall not discuss the matter. Likewise, neither Division shall have access in any manner to the other Division’s work product concerning pending adjudicatory proceedings.
An Enforcement Division attorney will represent the Commission as Petitioner and is a party to the adjudicatory proceeding.
After an Order to Show Cause is issued, the Legal Division is responsible, in the context of the adjudicatory proceeding, for advising the Presiding Officer concerning the conduct of any adjudicatory hearing, and advising the Commission concerning procedural and substantive matters relating to the rendering or the issuance or content of any decision. The Legal Division is not a party to the matter but serves as staff to the Presiding Officer and the Commission with respect to the matter.
C. Executive Director’s Role
The Executive Director, as a non-party, may discuss adjudicatory matters with Enforcement Division staff and with Legal Division staff, but may not convey information or work product from one division to the other regarding the matter.
At the discretion of the Commission, the Executive Director may attend and participate in Commission deliberations in adjudicatory matters. During deliberations, the Executive Director shall not convey to the deliberating Commissioners information obtained from the Enforcement Division that was not introduced into evidence. The Executive Director may not discuss the Commission’s deliberations with Enforcement Division staff. After the Commission has concluded its deliberations, the Executive Director may discuss and comment on draft decisions with the Legal Division staff and/or the General Counsel.
------------------------------
ADOPTED BY THE COMMISSION: May 30, 1979
AMENDED: January 23, 1980
January 11, 1983
April 17, 1984
October 16, 1984
February 28, 1990
May 12, 1998
March 1, 2001
May 30, 2002
February 19, 2004
December 12, 2007
September 16, 2011
December 16, 2011
February 17, 2016