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Council Bound by New State Ethics Law

by Mary Serreze | Jan 26, 2010 1:17 pm | Comments (0)

Posted to: City Hall

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On January 7, City Solicitor Elaine Reall presented the newly-seated 2010 Northampton City Council with an update on the 2009 Massachusetts State Ethics Law. “Under the new law, an employee is anyone who is doing the public’s business,” she explained, including board members, volunteers, private contractors, and appointed and elected officials.

On July 1st, enforcement of state ethics law will move from the District Attorney to the Open Meeting Division of the Attorney General’s Office. A senior employee of the city must serve as the official liaison with the State Ethics Commission. Glenda Stoddard, the city’s human resources director, has been recommended for that position.

Under the law, elected officials must complete and pass an on-line tutorial within thirty days of being sworn in.

A gift ban, tougher penalities, stronger lobbying laws, expanded enforcement authority, enhanced campaign finance laws, and an expansion and clearer explanation of open meeting law are all features of the new state ethics law, passed on July 16, 2009, in the wake of the DiMasi and Wilkerson scandals.

Reall told councilors to visit the State Ethics Commission website to learn how to avoid “bribes, self-dealing, and conflicts.”

Reall advised councilors to “think long and hard” before communicating with each other using e-mail. Deliberations among a quorum of a public body, whether they occur electronically, via serial telephone conversations, in a restaurant, or in a public building must be conducted within the guidelines of state open meeting law, said Reall.

(Check out HIghlights of Mass Ethics Reform Bill on Boston.com. A good outline of the new law can be found here on the Compliance Building blog.)

Reall, in the past, has argued for limits in the application of so-called sunshine laws. In 2007, while lawyer for the publicly-funded Forbes Library, Attorney Reall argued for the right of of its executive board to deny a local journalist access to minutes from a closed-door session where terms of a labor-related settlement were discussed.

Over the course of that year, Reall tangled with downstreet.net editor Edward Shanahan over the release of minutes from that privately-held March 13 session of the Board of the Forbes Library Trustees. Reall argued not only that “any document related to disciplinary matters and/or contained in a confidential personnel file are statutorily exempt from disclosure,” but that the Forbes Trustees were a non-public, quasi-private entity and thus immune from the provisions of open meeting law or public records disclosure. Assistant DA Cynthia Pepyne concurred at the time, writing “After review, this Office finds that the characteristics of the Board render it outside the jurisdiction of the Open Meeting Law G.L. c.39, Sec. 23A et seq.”

Under the new open meeting law, said Reall during her presentation, the Board of Trustees of the Forbes Library will qualify as a public body. The Board’s current website posts download links for minutes going back to December 20, 2004, excluding the executive session minutes that Shanahan sought.

The Media Law blog criticizes certain weakened enforcement provisions in the bill, saying that it “creates no new penalties and weakens the one penalty that the law formerly had. The former law authorized a fine of up to $1,000 against the board or commission that violated the law (but not its members). The new bill changes that to require proof that the board’s violation was ‘intentional.’ This is an almost impossible hurdle to overcome. Humans have intent, boards do not. How does one prove the intent of a board?”

Tags: open meeting law, state ethics law, masssachusetts, city council, northampton, city solicitor, Forbes Library, Atty Elaine Reall

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