Outstanding Achievement by a State Agency in Public Records Law Evasion: The Award Goes To…

The Massachusetts Gaming Commission, in a unanimous decision by the judges.

State and municipal agencies are prone to resisting public records requests (sometimes for reasons that may be understandable — like a lack of resources — but are nonetheless insufficient).  We’ve seen their trailblazing efforts at evasion in such areas as dilatory response tactics, exaggeration of the costs of compliance, and the fearless use of redaction.

Meanwhile, the Gaming Commission truly has been thinking outside the box. Rather than evading the law by withholding records that are in its possession (shutting off the outflow pipe), the Commission has pioneered a new approach: evading the law by declining to accept records in the first place (shutting off the inflow pipe).

Here’s what won the award for the Gaming Commission:

By statute, casinos have to file reports with the Commission about the complimentary services — “comps” in the trade lingo — that they provide. Comps are things like a free drink, a free meal, a free room — whatever will keep the gambler on the premises. In one famous case, a very wealthy casino patron was treated to comps in the form of private jet flights to Las Vegas, which contributed to her betting a billion dollars at casinos and racking up thirteen million dollars in gambling losses.

Information about comps is certainly not something the casinos favor disclosing, and they sought relief from this filing requirement. The Gaming Commission, agreeing with the casinos, recommended to the Legislature that it eliminate the requirement, but the Legislature failed to act. So the Gaming Commission stepped in to take care of the problem.  They used their regulatory power to excuse the casinos from having to file the reports, while continuing to require that the casinos maintain them and provide them to the Commission upon request.  Since the Commission has already stated that it “cannot envision a compelling use for this data,” don’t expect a request for the records anytime soon.

So the Gaming Commission has no records, for example, of the comps from the Plainville casino, which opened last year. If they did have them, those records would be subject to the public records law and we could have them too.  But no. Not so far anyway.

It’s certainly possible to argue that the statute requiring that casinos “shall submit” reports to the Commission doesn’t give the Commission leeway to decline them.  That the statute would result in the records being available under the public records law while the Commission’s regulation results in their being unavailable seems relevant to this whole analysis.  The right plaintiff could make things interesting.

(An earlier version of this post cited a source that misstated the amount of gambling losses accrued by the wealthy casino patron. Error, which author regrets, has been fixed.)


Licenses in Hand, Casinos Are Coming Back for More

The day after last week’s election, in which the pro-casino forces spent $14 million to defeat the casino law repeal effort, the state’s Gaming Commission officially awarded the casino licenses that beforehand had been only provisional, pending the outcome of the vote.

So you might well think that now that the licenses have been awarded and the i’s have been dotted and t’s crossed, everything is ready for takeoff. But that’s not how things work in the gambling world. As casino opponent Steven Abdow told the Globe yesterday, from the experience of other states we know what happens next: the casinos return to the Legislature with another wish list. Turns out that the law they lobbied so hard for is, well, not quite all of what they want.

For the past few months the casinos been working hard, and successfully, to get the state’s Gaming Commission on their side. The Commission, for example, now supports the notion that casinos should be exempt from the responsibility of checking to see if gambling winners are on the list of persons who are delinquent in paying child support or past due taxes before they make payouts. The state lottery isn’t exempt, but the Commission (which, incidentally is charged with protecting the lottery’s interests) appears to be of the view that casinos deserve an easier time.

And here’s another of the many changes the gambling industry wants. The law the Legislature passed three years ago requires casinos to file reports on the complimentary services — “comps” in the trade lingo — that they provide. Comps are things like a free drink, a free meal, a free room — whatever will keep the gambler on the premises. In one famous case, a very wealthy casino patron was treated to comps in the form of private jet flights to Las Vegas, which contributed to her racking up a staggering $1 billion in gambling losses. It’s hardly surprising that the Legislature regards the complimentary services a casino provides as worthy of the state’s regulatory attention.

But the industry has complained that these reporting requirements are administratively burdensome and wants them to be eliminated, and again, the Gaming Commission has taken the casinos’ side. The reports on complimentary services are unnecessary, the Commission agrees, not only because they would burden the casinos but also because the Commission itself cannot even “envision a compelling use for this data.” Well, here’s an idea — maybe a compelling use for the data is to see if complimentary services are playing any role in increasing compulsive gambling — like the casino law contemplated?

The Legislature will not return to formal sessions until January, so one might expect that bills to tilt the gambling law further in the industry’s favor will not emerge until then. But don’t count on it. You, like most of the members of the House of Representatives, were probably unaware that this past summer House Speaker Robert DeLeo quietly (very quietly) added a pro-casino provision to an otherwise uncontroversial bill on state-chartered banks. The House passed the bill without comment on the gambling law change (which reads opaquely as follows: “the second paragraph of section 3 of said chapter 167B, as so appearing, is hereby amended by striking out the last sentence”) discreetly tucked inside. If the bill is enacted during the remaining months of 2014, the casino industry will have defeated a law now on the books that prevents ATM’s from being placed inside casinos. If it’s not enacted, it will undoubtedly be back again in 2015, along with who knows what other requests.

So the lesson from other states is that now that the Massachusetts licenses have been issued, it’s time for us to really be on our toes. Eternal vigilance is the price of the “responsible gaming” the Legislature promised us. Assuming that one can even envision such a thing.

Here Come the Ballot Questions

Update: The Supreme Judicial Court has ruled that the casino repeal question should be on the ballot, so six questions appear headed there.

So it’s looking like there will be either five or six questions on the November statewide ballot.

Proponents of questions were required to submit an additional 11,000 or so voter signatures by last Wednesday to city and town elections officials. And to judge from their subsequent press releases, the campaigns for these six questions succeeded in collecting far in excess of the required number and therefore are on their way to the ballot:

  • Patient Safety Act
  • Limit Hospital CEO Compensation
  • Earned Sick Time for Employees
  • Prohibiting Casino Gambling
  • Updating the Bottle Bill
  • Repeal of Gas Tax Indexing

(More details on the substance of these questions here.)

The folks at Raise Up Massachusetts, who were collecting signatures for both the Earned Sick Time proposal and a Minimum Wage Increase proposal, announced today that they would not move forward with the minimum wage question and instead would accept the terms of the minimum wage bill that is now on the Governor’s desk. They plan to focus their efforts now on Earned Sick Time.

Whether the final number of ballot questions is five or six is up to the Supreme Judicial Court, which is now considering whether or not the casino prohibition question meets the requirements the State Constitution has set for ballot questions (the Attorney General ruled that it did not).

But whether it’s five questions or six, the 2014 ballot will be the busiest since 2000, when the questions numbered eight. For you hard-core ballot question fans, here’s a list by year of the number of ballot questions and, of those, the number that were approved: 1994 – 9/5; 1996 – 1/1; 1998 – 4/4; 2000 – 8/4; 2002 – 3/1; 2004 – 0; 2006 – 3/0; 2008 – 3/2; 2010 – 3/1; 2012 – 3/2.

In a couple weeks, the Secretary of State will hold a lottery to assign the numbers (1 through 5, or 1 through 6) to the ballot questions. It looks like the folks working on the gas tax indexing repeal have jumped the gun. They’ve already got a logo for that question (which proposes to repeal a provision passed last year to indexing the tax the state imposes on gasoline to the Consumer Price Index in order to keep tax collections reasonably comparable to the costs of constructing and repairing roads and bridges). Their logo urges voters to Vote “Yes 2 Repeal” indexing, which rather strongly implies that their petition will be Question 2 on the ballot.

The gas tax folks have a one in five (or one in six) change of winning the #2 spot in the lottery. Otherwise, they’ll have to modify their pitch to something like — “Vote ‘Yes 2 Repeal’ indexing by voting yes on Question #5.”

It could be a confusing election year.

Question for Warren Tolman: Is Gambling Really Different from Tobacco?

Warren Tolman, who’s running against Maura Healey for the Democratic nomination for Attorney General, is promoting his candidacy by touting his defeat of Big Tobacco. Here he is promising to do to the National Rifle Association what he did in the 1990’s to the tobacco industry.

One of Tolman’s allies in the fight against Big Tobacco was law professor Richard Daynard, who at the time was the head of the Tobacco Liability Institute at Harvard. And one of their joint successes was the enactment of the state’s tobacco disclosure law in 1996, the first law of its kind in the nation. The law requires tobacco companies to measure the level of nicotine that is absorbed into the body after smoking a cigarette and also to disclose to the federal government the ingredients (including ammonia, cyanide and DDT) in its cigarette brands.

Tolman is understandably proud of his anti-smoking accomplishments. But here’s a little wrinkle. His one-time ally Richard Daynard believes that the addictive dangers that tobacco companies encourage by selling cigarettes are the same as those the gambling industry encourages by promoting casinos and slot machines. And because of these dangers, Daynard, who is now the head of the Public Health Advocacy Institute at Northeastern, filed an amicus brief with the Supreme Judicial Court supporting the position the casino law should be presented to the voters for possible repeal. An excerpt from his indictment of the gambling industry (the entire brief is available here):

The harm caused by the tobacco industry’s products has been the archetype of a commercial threat to public health, and in considering the introduction of gambling industry casinos into Massachusetts, much can be learned from the object lesson of considering the tobacco industry as a disease vector. The predatory gambling industry shares much in common with the tobacco industry, and the People deserve the opportunity to exclude it from the Commonwealth. For example, casinos employ electronic gambling machines that are designed to addict their customers in a way that is similar to how the tobacco industry formulates its cigarettes to be addictive by manipulating their nicotine levels and other ingredients. Mirroring the tobacco industry’s strategy of creating scientific doubt where none truly exists, the casino industry has co-opted and corrupted scholarship on the effects of gambling through the use of front groups that funnel money to beholden scientists who are able to sanitize its origin. Borrowing another tobacco industry technique of shaping the debate around its products, by creating a misleading lexicon and using euphemisms, the casino industry has tried to influence debate, deflect criticism and mislead the public about its role as a disease vector. And finally, by employing personal and corporate responsibility rhetoric honed by the tobacco industry, the casino industry hopes to gain and maintain social acceptability and stave off litigation, regulation and citizen-driven activism.

Tolman does not support the repeal of the casino law. He believes he can regulate the industry to mitigate its harms. But his former ally Daynard’s position that the two industries present identical perils raises a couple questions: does Tolman disagree with him? If not, why is he willing to let another predator get a foot in the door?

Choose one: (a) Mohegan Sun, (b) Wynn Resorts, or (c) Neither of the Above

Gambling giant Mohegan Sun, which is hoping to win a license to build a casino near Boston, took out a full-page ad in the Globe last week touting itself as “a better choice for Massachusetts.” Better, that is, than Wynn Resorts, the other contestant. Both Mohegan Sun and Wynn Resorts would very much like you to forget that there is a third alternative: neither of the above.

Mohegan Sun’s claim to being “a better choice” than Wynn rests largely on its promised payoff to its host community, the city of Revere, and surrounding communities:

Through agreements with 12 communities, more than double our competitor in the region, and without the need for arbitration, Mohegan Sun will deliver more than $30 million in dedicated revenue each year and ensure maximum regional economic development from its development.

OK, so what’s rival Wynn promising for its host community, the city of Everett, and surrounding communities? Why, more than $30 million in dedicated revenue each year, the same as Mohegan Sun. There’s not really a lot to choose between the two on this score.

While we’re here in the weeds, let’s look at a few more numbers from the license applications. Mohegan Sun is projecting 8.1 million visits to its casino each year, which would generate between $850 million and $1 billion in gross gaming revenues. Of those 8.1 million visits, 87 percent would come from Massachusetts.

So, in exchange for “more than $30 million in dedicated revenue,” Mohegan Sun is planning to take between $740 million and $875 million out of our pockets. Not all of that money would be casino profit, of course. Some of it would pay operating costs and some would be shared with the state. But all of it would be lost by Massachusetts residents.

Which is one reason, as recent polls show, why more of us are taking another look at this whole idea. The premise of Mohegan Sun’s ad — that our only choice is which developer should get the nod, not whether to build a casino in the first place — reminds me of a joke that the mother of writer Annie Dillard was fond of playing with governmental requests for information. As Dillard wrote in An American Childhood, her mother, something of a comedian, regarded the instructions on bureaucratic forms as straight lines: “‘Do you advocate the overthrow of the United States government by force or violence?'” After some thought she wrote, “‘Force.'”


[Note: the numbers cited in this post are available at links contained in an Amicus Brief in Abdow v. Secretary, the case pending before the Supreme Judicial Court that will decide whether the question of repealing the state’s gambling law will appear on the November ballot. The brief is here and well worth a read.]