MGC Found to Have Violated Open Meeting Law with Lunches, Staff Meetings

December 31, 2015
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The Massachusetts Gaming Commission (MGC) violated the Open Meeting Law during lunches, staff meetings and once during the casino licensing process and will have to have a training on the Open Meeting Law according to a letter sent to the MGC last week.

Attorney General Maura Healy was asked by the MGC to review its conduct last summer regarding the Open Meeting Law when a story appeared in the Boston Herald regarding potential lunches and staff meetings that violated the Law.

Healy’s office, specifically Assistant Attorney General Amy Nable, reviewed the lunches, staff meetings and also expanded the review to include Commissioners’ computerized calendars for evidence of non-public deliberations.

“The Commission violated the Open Meeting Law by deliberating outside of an open meeting during some of the Commissioners Lunches, during early Staff Meetings, and when a quorum of the Commissioners discussed the need to research strategies for avoiding deadlock in issuing the Region A gaming license,” read a letter from Noble late last week. “With regard to more recent Staff Meetings and certain other meetings involving a quorum of the Commission, we have insufficient evidence to conclude that any violations occurred, but remind the Commission of the need to avoid deliberation during trainings and scheduling discussions. While a quorum of the Commission may meet socially without violating the Open Meeting Law, we advise caution with regard to any future Commissioners Lunches and remind the Commissioners that issues such as those outlined in this letter may only be discussed during a properly noticed meeting. In addition to the guidance provided in this letter, we believe it would be constructive for the Commissioners and their staff to receive training by our office on the Open Meeting Law.”

Nable stressed that none of the violations included discussions about the awarding of a casino license.

“These conversations did not concern the evaluation and award of gaming licenses,” read the letter.

The MGC indicated it appreciated the guidance and is now closely monitoring its actions in regard to the AG’s guidance.

“In response to the Commission’s request for a review, the AG’s Office noted our significant and successful efforts in adhering to the law and also offered constructive feedback on how we can more effectively apply the law to our unique working conditions,” said MGC Spokesman Elaine Driscoll. “The Commission is now closely reviewing this information and looks forward to scheduling the recommended training session offered by the AG’s Office. In keeping with our obligations under the law, the commissioners are unable to discuss the contents of the AG’s letter among themselves, but will place this important topic on the agenda for the next public meeting allowing them to engage in a substantive discussion and determine next steps.”

Nable indicated most of the discussions included operations of the MGC and the morale of employees. She said Commissioners believed it was permissible to discuss such matters privately, but in fact, it was not.

“Following our review, we conclude that, during both the Commissioners Lunches and the Staff Meetings, certain non­public deliberation occurred concerning the operation and management of the Commission that should have occurred in an open meeting,” read the letter. “While it is clear that the Commissioners believed they were permitted to discuss the operation and management of a state agency, as well as sensitive subjects like employee morale in private, such discussions should have occurred in the open.”

Some of the topics at the private lunches included:

  • The announcement by former Commissioner James McHugh that he would be retiring.
  • Staff morale in light of pending legal cases against the MGC and news coverage of the MGC.
  • Discussions about whether Commissioner Bruce Stebbins would be re-appointed, about introducing him to newly-elected officials responsible for his reappointment, and about a contingency plan in the event he were not reappointed.
  • Conversations about the Nov. 2014 Expanded Gaming referendum vote and what the MGC would do if the vote was successful and the MGC had to shut down. Talk was also had about postponing employee performance reviews until after the referendum.

One of the more pointed criticisms was an improper deliberation held by the commissioners in May 2014 shortly after Commissioner Steve Crosby recused himself from the Region A licensing process.

“On one occasion, it is clear that a quorum of the Commissioners held a contemporaneous, private discussion on a work related issue,” read the letter. “On May 20, 2014, shortly after Chairman Crosby recused himself from the Region A licensing process, the other four Commissioners met briefly to discuss the need to research strategies for avoiding deadlock in awarding the license. Those strategies, once researched, were discussed during open meetings held on May 15 and May 29, 2014. Because the May 20, 2014 conversation concerned Commission business—namely, how decisions would be made—it should have taken place during a meeting. This private discussion therefore violated the Open Meeting Law.”

Overall, the letter indicated that the MGC has paid close attention to making sure all things are discussed openly, but “certain aspects” of the law proved particularly challenging for a start-up agency