Beaty Gets AG's Office to Rule State Ethics Commission Violated OML

What's good for the goose...
County Commissioner Ron Beaty

Sometimes what's good for the goose is actually good for the gander...   Our feisty County Commissioner, Ron Beaty, recently filed an Open Meeting Law complaint against the State Ethics Commission.

Yes, you read that right.  Beaty filed an OML complaint against the State Ethics Commission.

Funny thing is, the Attorney General's office ruled that the Ethics Commission did in fact violate the Open Meeting Law.  

The full ruling appears below:

THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
(617) 727-2200
www.mass.gov/ago


January 24, 2018

OML 2018-10
Pauline N. Nguyen, Assistant General Counsel
State Ethics Commission
One Ashburton Place, Room 619
Boston, MA 02108
RE: Open Meeting Law Complaint

Dear Attorney Nguyen:
This office received two related complaints from Ronald Beaty alleging that the State Ethics Commission (the "Commission") violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. 

The first complaint was originally filed with the Commission on October 2, 2017, and the Commission responded by letter dated October 10, 2017. This complaint was then filed with our office on October 12, 2017. The second complaint was filed with the Commission on October 12, 2017, and the Commission responded by letter dated October 24, 2017. This complaint was then filed with our office on October 26, 2017. In his complaints, Mr. Beaty alleges that the Commission violated the Open Meeting Law by: (i) failing to post notice at least 48 hours prior to a meeting, (ii) posting a meeting notice that provided insufficient information about an anticipated executive session, (iii) entering executive session without following proper procedure, and (iv) failing to review an Open Meeting Law complaint before responding. 

Following our review, we find that the Commission violated the Open Meeting Law by posting an insufficiently detailed meeting notice and by failing to review an Open Meeting Law complaint before responding. However, we find that the Commission did not violate the Open Meeting Law in the other ways alleged. In reaching a determination, we reviewed the original complaint, the Commission's response, and the request for further review filed with our office.

We also reviewed an e-mail from the Commission to both our office and the Secretary of the Commonwealth's office dated September 15, 2017. We reviewed the notice of a Commission meeting held on September 21, 2017, as well as the minutes of this meeting. We spoke with the complainant by telephone on December 4, 2017. Finally, we reviewed supplementary e-mails from the Commission's legal counsel dated November 20 and December 11, 2017 and a memorandum from the Commission's legal counsel dated December 28, 2017.1

1 For the sake of clarity, we refer to you in the third person.

MAURA HEALEY
ATTORNEY GENERAL

FACTS
We find the facts as follows. The Commission, a state agency that enforces state conflict of interest and financial disclosure laws, operates pursuant to several statutory provisions governing confidentiality of Commission proceedings. See G.L. c. 268B, § 3(g) ("An opinion rendered by the commission [...] shall be confidential^]"); G.L. c. 268B, § 4(a) ("All commission proceedings and records relating to a preliminary inquiry or initial staff review to determine whether to initiate an inquiry shall be confidential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of
competent jurisdiction evidence which may be used in a criminal proceeding."); G.L. c. 268B, § 7 ("Any person who violates the confidentiality of a commission inquiry under the provisions of paragraph (a) of section four of this chapter shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both.") The Commission has promulgated regulations implementing these confidentiality requirements. See, e.g.. 930 CMR 3.01(8) ("Legal advice given by the Commission's Executive Director, General Counsel, and Legal Division and advisory opinions issued pursuant to M.G.L. c. 268B, § 3(g), shall be confidential regardless of whether such advice or opinion is written, oral, or electronic.")

On September 15, 2017, the Commission posted notice on its website of a meeting to be held on September 21, 2017. Also on September 15, 2017, the Commission sent an e-mail containing a copy of the notice to the Secretary of the Commonwealth's Office, as well as to this office. This e-mail read in pertinent part, "The notice has been posted to the Commission's website." Due to a technical error, the Commission's website stated that the date on which the notice had been posted was September 21, 2017, the day of the meeting at issue. 

The Commission's September 21, 2017 meeting notice is generally divided into two parts, "PUBLIC SESSION" and "EXECUTIVE SESSION." The latter half of the notice, under "EXECUTIVE SESSION," reads as follows:

ENFORCEMENT DIVISION MA TTERS
a. Investigations Memorandum (Enforcement Tab 2)
b. Enforcement Division Update (Enforcement Tab 3)
c. List of Open Preliminary Inquiries (Enforcement Tab 4)
d. PI Report and 3D Submission (Enforcement Tab 5)
e. PI Report and 3D Submission (Enforcement Tab 6)
f PI Report and 3D Submission (Enforcement Tab 7)
g. PI Report and 3D Submissions (Enforcement Tab 8)
h. PI Report (Enforcement Tab 9)
i. Supplemental Summons Authorization (Enforcement Tab 10)
j. Amended Preliminary Inquiry Recommendation (Enforcement Tab II)

LEGAL DIVISION MATTERS
a. Request for a Formal Commission Opinion (Legal Tab B)
b. Summaries of selected informal opinions/advice are enclosed (Legal Tab C)

ADJUDICA TOR Y MA TTERS
a. Adjudicatory proceedings status report (Legal Tab D)
b. In Re Howard Hansen, Adjudicatory Docket No. 16-0001 (Commissioner
Sartory): continue deliberations
2

No further information was given on the notice regarding the legal justification for the executive session. The Commission held the September 21, 2017, meeting as planned. The chair made a motion to enter executive session "to discuss matters subject to the G.L. c. 3OA, § 21 subparagraph (a)(7) and § 18, and G.L. c. 268B, §§ 3 and 4. These matters included investigatory matters, cases deferred, a preliminary inquiry recommendation, a summons authorization request, preliminary inquiry reports, advisory opinions and deliberations." The minutes then contain the roll of each Commissioner's vote to enter executive session. 

The minutes of the September 21, 2017 executive session have not been released and their contents will therefore not be discussed in detail in this letter. During the time reserved for Enforcement Division Matters, the Commissioners discussed matters under initial review by Commission staff or in the preliminary inquiry stage. This included discussions of whether to authorize formal investigations or summons requests, or whether reasonable cause existed to initiate adjudicatory proceedings. During the time reserved for Legal Division Matters, the Commissioners discussed a matter that had been referred from the Commission's Legal Division. 

During the time reserved for Adjudicatory Matters, the Commissioners discussed disciplinary matters, including issuing a final decision and order, pursuant to G.L. c. 268B, § 4(1).

DISCUSSION

I. The Board Posted Notice of its September 21. 2017 Meeting More Than 48 Hours in Advance of the Meeting.

The Open Meeting Law requires that "[e]xcept in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting excluding Saturdays, Sundays and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting." G.L. c, 30A, § 20(b). State public bodies, such as the Commission, must post notice to a website, along with sending a copy of each notice to the Secretary of the Commonwealth's Regulations Division. 940 CMR 29.03(6).

The complaints allege that the Commission failed to post notice at least 48 hours prior to the September 21 meeting. As evidence, the complaint points to the date stamp on the Commission website stating that the notice was posted the same day as the meeting. The Commission stated in its response that the notice was posted on September 15, 2017 and it provided the contemporaneous e-mail stating that the notice had been posted to the Commission website. Absent evidence to the contrary, we credit a public body's version of the facts. See OML 2017-193.2 We therefore find that the Commission posted the notice more than 48 hours prior to the September 21, 2017 meeting, notwithstanding the errant posting date listed on the website. The Commission has assured our office that it will ensure in the future that its website indicates the correct date and time at which notices are posted.


2 Open Meeting Law determinations are available at the Attorney General's website; www.mass.gov/ago/openmeeting.
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II. The Commission's September 21, 2017 Meeting Notice was Insufficiently Detailed.

The Open Meeting Law requires that all meeting notices include "a listing of topics that the chair reasonably anticipates will be discussed at the meeting." G.L. c. 30A, § 20(b). The notice must list those topics with "sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(l)(b). This level of detail is required for both open session and executive session topics. See OML 2015-69. 

The complainant alleges that the Commission's September 21, 2017 notice was insufficiently detailed. While the first complaint does not specify how the meeting notice was lacking, the complainant told us in a telephone conversation that the notice provided insufficient information about each executive session topic and also failed to cite the purpose or purposes that the Commission relied upon to justify the executive session. With respect to the detail given on each executive session topic, we find that the Commission was constrained by its governing statutes in how much detail it could provide. The Commission convened in executive session pursuant to G.L. c. 30A, § 21(a)(7), citing to the relevant statutes requiring that Commission business be conducted confidentially.3 The Enforcement Division matters were appropriate for executive session pursuant to G.L. c. 268B, § 4(a). The Legal Division matters were appropriate for executive session pursuant to G.L. c. 268B, § 3(g) and 930 CMR 3.01(8). The adjudicatory matters were appropriate for executive session under G.L. c. 268B, § 4(i). The Commission was therefore required to withhold information on the meeting notice that would compromise that required confidentiality. See OML 2011 -56 (a public body may withhold information that would defeat a lawful purpose for secrecy). On the facts present here, we find that the Commission permissibly withheld identifying information about each individual or topic  discussed during the September 21, 2017 executive session.

The complainant also alleges that the notice provided insufficient information about which executive session purposes formed the basis for the Commission's closed-door conversation. Our office has concluded that an executive session purpose need not include the specific statutory citation if the description is sufficiently clear on which purpose the public body has relied. See OML 2016-64. In this instance, however, we find that it was not immediately apparent on the face of the meeting notice which executive session puipose justified the executive session. Accordingly, the Commission should have indicated the specific purpose(s), either identifying it by the statutory language, citation and/or the purpose(s) (i.e., "Purpose 7"). 

See District Attornev for N. Dist. v. Sch. Comm. of Wayland. 455 Mass. 561, 567 ("[a] precise statement of the reason for convening in executive session is necessary under the open meeting law because that is the only notification given to the public that the school committee would conduct business in private, and the only way the public would know if the reason for doing so was proper or improper"). We find that this failure constituted a technical violation of the Open Meeting Law. See OML 2017-164.

3 Public bodies may enter executive session "[t]o comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements." G.L. c. 30A, § 21(a)(7).

4 III. The Commission Followed Proper Procedure Before Convening in Executive Session on September 21. 2017.

A public body may enter executive session for any of ten enumerated purposes, provided that it has first convened in an open session, that the chair states the purpose for the executive session and announces whether the open session will reconvene at the conclusion of the executive session, that a majority of members of the body have voted to go into executive session, and that the vote of each member is recorded by roll call and entered into the minutes. 

G.L. c. 3OA, §§ 21 (a), (b). Prior to entering executive session during the September 21, 2017 meeting, the chair stated the purpose for the executive session, including a statutory citation, and gave a general description of the business to be done in executive session. Our review of the meeting minutes shows that the Commission followed all required procedural steps. As discussed above, a chair may omit identifying information from the pre-executive session statement where disclosure of such information would defeat the lawful purposes for secrecy. That is what happened in the present case. The chair also stated the relevant section of the Open Meeting Law to justify the executive session. We therefore find no violation with respect to this allegation.

IV. The Commission Failed to Discuss an Open Meeting Law Complaint Before Responding.

Within 14 business days after receiving the complaint, unless an extension has been granted by the Attorney General, the public body shall meet to review the complaint's allegations; take remedial action, if appropriate; and send to the complainant a response and a description of any remedial action taken. 940 CMR 29.05(5). The chair is required to disseminate copies of the complaint and the public body must meet to review the complaint and formulate a response, or meet to delegate that authority. See OML 2012-90.4 The complainant alleges that the Commission's legal counsel responded to the first complaint at issue in this letter without the Commission first meeting to review that complaint. 

In response, the Commission stated that the responsibility for responding to all Open Meeting Law complaints had been delegated to the Commission's legal counsel during a meeting on July 16, 2015. If a public body wishes to delegate the responsibility for responding to an Open Meeting Law complaint to its legal counsel, it may do so, however the body must still meet to consider and refer all complaints. See OML 2017-197. Accordingly, we find that the Commission violated the Open Meeting Law by failing to meet to review the first Open Meeting Law complaint addressed in this letter prior to the response from counsel.

CONCLUSION 

For the reasons stated above, we find that the Commission violated the Open Meeting Law by posting an insufficiently detailed meeting notice and by failing to review an Open Meeting Law complaint before issuing a response through legal counsel. We order the 4 The requirement that a public body meet to review a complaint is codified in the most recent version of the Attorney General's Open Meeting Law regulations, effective October 6. However, this interpretation of the Open Meeting Law's requirements has been utilized by this office for several years.

5
Commission's immediate and future compliance, and we caution that similar future violations may be considered evidence of intent to violate the law. 

We now consider the complaints addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with our office or the Commission. Please feel free to contact the Division at (617) 963 - 2540 if you have any questions.

Sincerely,
Kevin W. Manganaro
Assistant Attorney General
Division of Open Government
cc: Ronald Beaty
This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any member of a body aggrieved by a final order of the Attorney General may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of a final order. 6


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