CHAPTER 28 OF THE ACTS OF 2009

THE “ETHICS REFORM” ACT

Summary of Key Provisions of the Law

Prepared by Matthew G. Feher, J.D.

Massachusetts Municipal Association

September 2009

On July 1, 2009, the governor signed Chapter 28 of the Acts of 2009, known as
the Ethics Reform Law (hereinafter, “the Act”). The Act makes several amendments to
the state’s conflict of interest laws, open meeting laws, lobbying laws and campaign
finance laws.

Provisions of the Act take effect on the following prescribed dates—those dealing
with conflict of interest law and lobbying laws on September 29, 2009, campaign finance
law on January 1, 2010, and open meeting law on July 1, 2010.

Key provisions of Chapter 28 of the Acts of 2009 are summarized as follows:

Conflict of Interest Law

Sections 61 through 97 of the Act make several changes to the state’s conflict of
interest law, G. L. c. 268A, and the State Ethics Commission enabling act, G.L. c. 268B.
These provisions are scheduled to take effect on September 29, 2009.

Key amendments to current provisions of the conflict of interest law of

importance to local officials follow:

1) Criminal penalties for bribery have been increased to up to a $100,000 fine, or

imprisonment in state prison for up to 10 years, or in jail or house of correction
for up to 2 ½ years, or both.

2) Civil penalties for bribery increase from $2,000 to $25,000. Civil penalties for all
other ethics violations increase from $2,000 per violation to $10,000 per violation.

3) Public employees may not present false or fraudulent claims to their employers
for any payment or benefit of substantial value.

4) It will be a violation for any public employee to fraudulently cause another to (a)
solicit or receive anything of substantial value for an officer or employee for the
officer or employee’s official position or (b) use or attempt to use their official
position to obtain for another unwarranted privileges or exemptions of substantial
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value or (c) present a false or fraudulent claim to their employer for any payment
of substantial value.

Note: The State Ethics Commission (hereinafter, “the Commission”) shall adopt
regulations: (i) defining “substantial value;” provided, however, that “substantial
value” shall not be less than $50; (ii) establishing exclusions for ceremonial gifts;
(iii) establishing exclusions for gifts given solely because of family or friendship;
and (iv) establishing additional exclusions for other situations that do not present a
genuine risk of a conflict or the appearance of a conflict of interest.

In addition, several new educational components to the conflict of interest law

that all municipal employees must be aware follow:

1) G.L. c. 268A, §27 (new section), requires the Commission to publish on its
website a summary of the conflict of interest law. Each city and town clerk will
be required to provide a copy to all municipal employees “within 30 days of
becoming such an employee, and on an annual basis thereafter…” Each current
municipal employee must sign a written acknowledgement that they have been
provided with such a summary. All acknowledgements must be filed with the city
or town clerk. The Commission advises that municipal clerks provide such
summaries to all employees on or before December 28, 2009.

2) G.L. c. 268A, §28 (new section), requires the Commission to prepare and publish
on its website two online training programs, one which provides an introduction
to the requirements of the conflict of interest law, and a second which provides
information on the conflict of interest law for former public employees. All
municipal employees will be required to complete such on-line training every two
(2) years. For new employees such training must be completed within 30 days of
hiring. For current employees, the Commission suggests all municipal officials to
complete the online training on or before December 28, 2009, using the current
program already available on its website (www.mass.gov/ethics). The
Commission states that the online training program may be conducted at any
computer terminal, including at home, and should take no longer than one hour to
complete.

3) G.L. c. 268A, §29 (new section), requires each city and towns to designate a
“senior level employee of the municipality” who will serve as its liaison to the
Commission. The Commission will be requesting that each municipality
designate its liaison on or before January 27, 2010 pursuant to Section 102 of the
Act.

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Lobbying Laws

Section 1 through 16 of the Act makes several changes to the state’s lobbying
laws. These provisions are scheduled to take effect on September 29, 2009.

Sections 2 and 3 of the Act expand the definition of a lobbyist to include persons
who engage in strategizing, planning and research related to communications with
government employees.

Lobbying activities that are incidental to other professional activities remain

exempt; however, the thresholds defining what is considered “incidental” for the
purposes of the statute have been lowered significantly. Pursuant to Sections 2 and 3 of
the Act, persons who engage in lobbying activity for not more than 25 hours and receives
less than $2,500 during any 6-month period are not required to register as a lobbyist.

These same sections of the Act also expand the definition of lobbying activity to
include for the first time any act to influence or attempt to influence the decision of any
officer or employee of a city or town when those acts are intended to carry out a common
purpose with executive or legislative lobbying at the state level.

Finally, the Section 12 of the Act provides the Secretary of State civil
enforcement authority over the lobbying laws, including, but not limited to, the authority
to subpoena documents and testimony and to impose a civil fine up to $10,000 per
violation.

Campaign Finance Law

Section 35 of the Act amends the reporting provisions of the state campaign
finance law to require that any mayoral candidate file a contribution and expenditure
report pursuant to G.L. c. 55, §18 with the director of the Office of Campaign and
Political Finance in the following circumstances:

(a) in a municipality with a total population, as determined by the most recent

federal decennial census, of between 40,000 and 100,000 persons, OR

(b) if the candidate or the candidate’s committee, during the election cycle, can
reasonably expect to raise or spend more than $5,000, OR

(c) if the candidate’s committee is required to file such reports with the director
pursuant to G.L. c. 55, §19.

Sections 44 and 45 of the Act would amend G.L. c. 55, §19 to require candidates
for city council or alderman in cities with a population of over 100,000 to designate a
financial institution as a depository for campaign funds.

Section 54 and 55 of the Act would amend G.L. c. 55, §26 to require municipal

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clerks to retain all reports and statements for 6 years following an election for which they
were filed. Within 30 days after the filing deadline, all campaign finance reports required
to be filed with the clerk must be made available municipality’s website, if such
municipality has such a website, only if the report discloses that a candidate or committee
filing a report has received contributions, made expenditures, incurred liabilities, or
acquired or disposed of assets in excess of $1,000 during a reporting period.

These provisions take effect January 1, 2010.

Open Meeting Law

Section 17, 19 and 20 of the Act repeals the statute regulating open meetings for
state, county and local governments, respectively. Section 18 of the Act codifies a new
open meeting law for all public governments to be codified at G.L. c. 30A, §§18-25.
These provisions take effect July 1, 2010.

The Act does not impose any individual fine on persons who are found to have
violated any of the open meeting law’s provisions. Instead, the Act maintains the current
fine language—$1,000 per occurrence fine of the municipal board.

Further, no longer will each District Attorney be responsible for enforcing and
interpreting the open’s meeting law’s provisions. All such authority is vested with state’s
Attorney General.

A summary of key changes follow in the order to be codified in the General

Laws:

G.L. c. 30A, §18—Definitions

(1) The term “Deliberation” has been expanded to include all written and oral
communications, including electronic mail. The term shall not include the
distribution of a meeting agenda, scheduling information or distribution of
other procedural meeting or the distribution of reports or documents that may
be discussed at a meeting, provided that no opinion of a member is expressed.

(2) The term “Meeting” has been amended to specifically not include the
following: (a) an on-site inspection of a project or program, (b) attendance by
a quorum of a public body at a public or private gathering, (c) attendance by
a quorum of a public body at a meeting of another public body—all so long
as the members do not deliberate; nor does it include (e) attendance by
quorum at Town Meeting.

(3) New term “Intentional Violation” is defined as any act or omission by a

public body or a member thereof, in knowing by violating the open meeting
law.

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(4) New term “Minutes” is defined as the written report of a meeting created by a
public body required by subsection (a) of section 23 and section 5A of
chapter 66.

(5) New term “Open Meeting Law” is defined as sections 18 through 25 of

chapter 30A.

(6) New term “Post Notice” is defined as act of displaying conspicuously the
written announcement of a meeting either in hard copy or electronic format.

(7) New term “Preliminary Screening” is defined as the initial stage of screening
applicants conducted by a committee or subcommittee of a public body solely
for the purpose of providing to the public body a list of those applicants
qualified for further consideration or interview.

(8) The term “Government Body” has been eliminated and replaced with “Public
Body” and combines the prior definitions for both state and municipal
“Government Bodies” and includes subcommittees that are created to advise
or make recommendations to a public body.

(9) The following terms remain preserved in the new law: “Emergency”,
“Executive Session”, and “Quorum.”

(10) The term “Made Public” has been eliminated altogether.

G.L. c. 30A, §19—Administration

(1) Establishes a division of open government within the Attorney General’s

Office to perform the duties imposed upon the Attorney General by the Open
Meeting Law. The Attorney General shall designate an assistant attorney
general as the Director of said division.

(2) The Attorney General shall provide educational materials and training to
Public Bodies on the Open Meeting Law.

(3) Establishes an Open Meeting Law Advisory Commission consisting of the

following 5 members: the 2 chairs of the Joint Committee on State
Administration and Regulatory Oversight, the Attorney General, the president
of the MMA, and the president of the Mass. Newspaper Publishers Assoc.
The commission shall review issues relative to the open meeting law and shall
submit to the attorney general recommendations for changes to the
regulations, trainings, and educational initiatives relative to the open meeting
law as it deems necessary and appropriate.

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G.L. c. 30A, §20—Meetings: Notice and Participation

(1) Law still requires 48 hours notice of any meeting, except in emergency
situations where notice shall be posted as soon as reasonably possible. Posted
notice must include listing of topics that the chair of the public body
“reasonably anticipates” will be discussed.

(2) The attorney general shall have the authority to prescribe or approve
alternative methods of notice where the attorney general determines such
alternative will afford more effective notice to the public

(3) The attorney general may by regulation or letter ruling, authorize remote
participation by members of a public body not present at the meeting location.
Such authorized members may vote and shall not be deemed absent for the
purposes of section 23D of chapter 39.

(4) After notifying the chair of the public body, any person may make a video or
audio recording of an open session of a meeting of a public body, or may
transmit the meeting through any medium, subject to reasonable requirements
of the chair.

(5) No person shall address a meeting of a public body without permission of the
chair, and all persons shall, at the request of the chair, be silent. No person
shall disrupt the proceedings of a meeting of a public body.

(6) Within 2 weeks of qualification for office, all persons serving on a public
body shall certify, on a form prescribed by the attorney general, the receipt of
a copy of the open meeting law, regulations promulgated pursuant thereto and
a copy of the educational materials prepared by the attorney general
explaining the open meeting law.

G.L. c. 30A, §21—Executive Sessions

(1) A local public body still has to first convene in an open session for which
notice was given and a vote was taken, in order to meet in executive session.

(2) The public body may meet in executive session for the following purposes, all
of which were itemized previously—(a) reputation, character, physical
condition, mental health, rather than professional competence, of an
individual, (b) discipline, dismissal, complaints against public employee,
officer staff member or individual, (c) collective bargaining or litigation, (d)
negotiations with nonunion personnel, (e) deployment of security personnel or
devices, (f) criminal investigation, (g) purchase, exchange, lease or value of
real property, (h) to comply with the provisions of law, (i) preliminary
screening of applicants, and (j) mediation.

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(3) In addition, a body may now convene in executive session to discuss trade
secrets or confidential, competitively-sensitive or other proprietary
information provided in the course of activities conducted by a governmental
body as an energy supplier, municipal aggregator or in the course of activities
conducted by a cooperative consisting of governmental entities.

G.L. c. 30A, §22—Minutes

(1) Minutes must include the summary of discussions on each subject, list of
exhibits used at the meetings and decisions made, including a record of all
votes.

(2) All exhibits shall be part of the official record, except materials used in a
performance evaluation as to professional competence or in deliberations
about employment or appointment.

(3) Minutes of open meeting session must be made available upon request to any
person within 10 days.

(4) Minutes of executive sessions must be disclosed “when the purpose for which
[the]…executive session was held has been served.”

(5) At reasonable intervals, or within 30 days of a request, a public body shall

review the minutes of executive sessions to determine if continued non-
disclosure is warranted.

G.L. c. 30A, §§23, 24—Investigation and Enforcement

(1) With reasonable cause, the Attorney General may conduct an investigation by
requesting that information be voluntary provided or, if not provided, by
taking testimony under oath and requiring that documents be produced.

(2) At least 30 days prior to submission of the Attorney General, but within 30
days of the alleged violation, a complaint must be filed with the public body,
providing it an opportunity to remedy the same. The public body shall notify
the Attorney General of any remedial action taken within 14 days of receipt
of the complaint.

(3) Upon receipt of a complaint, the Attorney General shall determine whether a
violation of the open meeting law occurred in a timely manner.

(4) The Attorney General may: (a) compel compliance, (b) compel attendance at
training session, (c) nullify action taken at meeting, (d) impose a civil penalty
upon the public body of up to $1,000 for each intentional violation, (e)
compel materials to be made public, (f) reinstate a dismissed employee, (g)
compel materials to be made public, or (h) prescribe other action.

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G.L. c. 30A, §25—Regulatory/Ruling Authority

(1) The Attorney General has the authority to promulgate rules and regulations to
carry out the enforcement of the open meeting law.

(2) The Attorney General has the authority to interpret the open meeting law and
to issue written rulings or advisory opinions.