July 27, 2009

Decision and Order

Appearances: Stephen P. Fauteux, Esq.
Mark Walter, Esq.
Counsel for the Petitioner

Thomas A. Dougherty, Esq.
Counsel for the Respondent

Commissioners: Swartwood, Kane, Kempthorne, King

Presiding Officer: Commissioner Matthew N. Kane

I. INTRODUCTION

From March to November, 2002, Respondent Thomas Kennedy, a General Inspector II for the Massachusetts Highway Department ("MassHighway"), was assigned to a highway construction project on Route 44 between Middleborough and Plymouth. P.A. Landers ("Landers") was the general contractor for the project, and did the excavation, drainage and paving. Truckloads of asphalt were weighed at Landers' plant and the company's truck drivers were given weight slips indicating the weight of the loads. Kennedy's duties included inspecting Landers' deliveries of asphalt at the construction site. Kennedy certified the drivers' weight slips and submitted them with pay slips to his supervisor at MassHighway. The pay slips were used to prepare biweekly contract quantity estimates as part of the payment process. Kennedy's signature on a pay slip was necessary for Landers to be paid. If Kennedy did not timely submit signed pay slips, MassHighway's payment to Landers would be delayed.

After an adjudicatory hearing, the Commission finds that the Petitioner has proved by a preponderance of the evidence that in June, 2002, Kennedy asked Terry Edwards ("Edwards"), a project manager for Landers, first to pay for a damaged tire and subsequently to pay for his gasoline expenses, and that Kennedy received gasoline reimbursements from Landers from June through November, 2002. [1] By his own admission, in exchange for the payments, Kennedy made things "go more smoothly" for Landers. In particular, he processed paperwork to ensure that Landers received timely payment from MassHighway and, on June 29, 2002, he certified six weight slips without actually inspecting Landers' deliveries of asphalt. Through this conduct, Kennedy violated G.L. c. 268A, § 2(b).

II. VIOLATION OF § 2 - BRIBERY

To prove a violation of § 2(b), Petitioner must provide substantial evidence of each of the following elements: that Kennedy was a state employee, and that he, directly or indirectly, corruptly asked for or received anything of value for himself in return for being influenced in his performance of any official act or any act within his official responsibility.

There is no dispute that Kennedy was a state employee. The parties also have stipulated that Kennedy's inspections and certifications of P.A. Landers' asphalt deliveries were official acts and/or acts within his official responsibility. In addition, it is stipulated that his processing of official project paperwork necessary for Landers to receive payment for its work on the project was an official act and/or an act within his official responsibility.

What remains in dispute is whether Kennedy: (1) directly or indirectly, corruptly asked for or received anything of value for himself; and (2) did so in return for being influenced in his performance of any official act or any act within his official responsibility. As set forth below, we answer both questions in the affirmative.

1. Kennedy Corruptly Asked for and Received Items of Value

A. Asked and received

The evidence supports the following additional findings of fact. Beginning in 1997, the federal Department of Transportation ("DOT") conducted an investigation of Landers. The primary investigation was about whether Landers was delivering less asphalt to the government than it represented, and was thus overbilling the government. The investigation focused in part on Landers' delivery of asphalt to the Rt. 44 project.

As part of the investigation, Special Agent Todd A. Damiani interviewed Kennedy on December 29, 2003 and wrote a report of his interview on December 30, 2003. At the outset, Damiani told Kennedy that the DOT could not offer any rewards to Kennedy in relation to his testimony, but that it was likely that cooperation would be considered favorably by the prosecutor.

Kennedy told Damiani that in June, 2002, he blew a tire on his private vehicle while working on the Rt. 44 project. [2] Edwards was responsible for field operations for Landers. Kennedy told Damiani he asked Edwards if he could be reimbursed for the cost of the tire. Kennedy said that he provided a receipt to Edwards and received the cost of the tire in cash, approximately $90 or $100.

Petitioner called Edwards as a witness at the hearing. Edwards confirmed that Kennedy asked him for reimbursement for a damaged tire, and that Edwards paid Kennedy $100.

In addition to the tire reimbursement, Kennedy told Special Agent Damiani that in June, 2002, he also asked Edwards to reimburse his gasoline expenses. [3] During the December 2003 interview, Kennedy explained to Damiani that he submitted gas receipts to Edwards, and Edwards reimbursed him through the end of the construction period. Kennedy told Damiani that he did not keep track of the amounts he received, but he approximated that the amount was between $2,000 and $3,000.

During the hearing, Edwards corroborated that Kennedy was reimbursed for his gas receipts. Specifically, Edwards testified that beginning in June, 2002, Kennedy requested reimbursement of his gasoline expenses. Edwards informed his supervisor, Steve Rose, at Landers about Kennedy's request and subsequently received authorization to pay Kennedy. Thereafter, Kennedy gave Edwards gasoline receipts. Approximately every two weeks, Edwards submitted the Kennedy receipts along with his own receipts and received payment from petty cash.

Edwards testified that he gave Kennedy the payments for both the tire reimbursement and for Kennedy's gasoline expenses by putting the money in the cup holder in his truck. On each occasion, Kennedy got into Edwards' truck and took the money. According to Edwards, the amount of the payments averaged about $100 a week, and the total for the period from June to November, 2002 was between $2,000 and $2,700.

Based on the foregoing, the Commission finds that this evidence supports a conclusion that Kennedy asked for and received payments for his tire reimbursement as well as gasoline expenses from Edwards from June to November, 2002.

B. Anything of value

It is clear from the evidence that, by receiving payments from Landers, Kennedy received "anything of value" for purposes of § 2(b). [4]

First, the Keeper of the Records for Landers produced copies of "all original gasoline fuel receipts in my custody that were submitted for reimbursement by Terry Edwards from the period of January thru November 2002." ( See Ex. 16.). These receipts included more than $ 1,430.00 in gas receipts submitted by Edwards.

During his testimony, Edwards explained that he was supposed to initial receipts for gasoline purchases before he submitted them for payment from petty cash. At first, Edwards signed his name on Kennedy's receipts for gasoline purchases and put the job number, 30140, on them before submitting them. After a time, Edwards "became disenchanted with the whole process" and stopped initialing Kennedy's receipts. He continued to write the job number on Kennedy's receipts for a time, but then stopped. He still submitted the unsigned, uninitialed receipts for payment. In either case, whether the receipts were signed and initialed or not, Edwards testified that he received money from petty cash in the amount of the receipts and paid Kennedy. With the exception of a few receipts showing small purchases and a few illegible receipts, Edwards testified he submitted all of the remaining receipts on Kennedy's behalf.

There was some dispute about whether some or all of these receipts related to Kennedy's reimbursements. Edwards acknowledged that he recognized his own signature or initials or the job number on only an initial group of receipts. Edwards could not identify the handwriting on all of the receipts at issue. Kennedy contends that the unidentified handwriting interrupted the chain of custody and renders the receipts unreliable evidence.

We disagree. First, the receipts were submitted by the Keeper of the Records at Landers who attests that these receipts constituted "all original gasoline fuel receipts in my custody that were submitted for reimbursement by Terry Edwards from the period of January thru November 2002." ( See Ex. 16.).

Second, we are persuaded that these receipts were submitted on Kennedy's behalf based on the testimony of Agent Damiani and Mr. Edwards. For example, Edwards' testimony makes clear that there was a usual course of conduct indicating that the vast majority of receipts related to payments that Edwards made to Kennedy. Edwards testified that he had a fleet card specific to his own car, and bought gasoline at North River Automotive in Hanover or Town Brook Service Center in Plymouth, where P.A. Landers had an account. He did not submit receipts for his own gasoline purchases for reimbursement. At times, he needed to buy gas when the crew was running equipment at the project site. On these occasions, he bought small amounts of gas - five gallons, or $6, $8 or $10 of gas -- at various gas stations close to the job. He submitted these smaller receipts for reimbursement from petty cash.

With the exception of these relatively small purchases, Edwards testified that all of the remaining receipts were Kennedy's receipts. In particular, Edwards stated that the only gas receipts Edwards submitted for full tanks of gas were for Kennedy between June and November 2002. Among these receipts were gasoline purchases from Cumberland Farms in Plymouth, Grampy's Sunoco in East Taunton, and Texaco, Super Petroleum, and Sunoco A Plus in Middleborough. Edwards testified that he did not purchase gasoline from any of these stations. Instead, Edwards testified that these receipts were for Kennedy's purchases.

Finally, Kennedy's argument concerning the scope of reimbursements somewhat misses the point. His acceptance of any reimbursement-whether at the $100 level or the $1,000 level-is problematic under these circumstances. Here, even excluding the receipts for less than ten dollars (since Edwards identified those as his own purchases), all of the remaining receipts between June and November, 2002 amount to $1,342.87. [5] This amount clearly constitutes "anything of value" for purposes of the statute. Indeed, even if only the legible receipts showing Edwards' handwriting were considered, for a total of $216.00, this element of the violation similarly has been proven. Consequently, Petitioner has established that Kennedy obtained something "of value."

C. Corrupt intent

To prove a violation of § 2(b), the Petitioner must prove that Kennedy asked for and received the gasoline reimbursements from Edwards with corrupt intent. The Commission previously has used the following definition of "corrupt" as follows: "of debased political morality; characterized by bribery, the selling of political favors, or other improper political or legal transactions or arrangements." [6]

Here, we find that Kennedy solicited the payments at issue with corrupt intent. First, there was no evidence that Kennedy was entitled to receive reimbursement of his gasoline expenses from Landers, and it is safe to conclude that he was not entitled to receive such payments from a private company whose deliveries he inspected. [7] During the pertinent time period, moreover, the Commonwealth already was paying Kennedy for his gasoline expenses. Both the testimony of Kennedy's supervisor, Mike McGovern, and travel vouchers indicate that MassHighway reimbursed Kennedy for gas from February through November, 2002. The payments from Landers meant that Kennedy was paid back for the same gasoline expenses twice. In addition, the means by which each payment was made - with Kennedy surreptitiously and repeatedly taking the money out of the cup holder in Edwards' truck - was hardly above-board.

Next, by Kennedy's own admission, in return for the payments, he compromised his official duties and treated Landers leniently. Kennedy told Special Agent Damiani that, in exchange for the payments, he did not make sure that Landers "dotted every i and crossed every t." Kennedy indicated that if a contractor is held to the letter of the law, it would be very difficult for a contractor to work. Kennedy said he did not "bust their balls" on the project, which would allow the project to go smoother. The clear implication is that he would have made the project go less smoothly if Landers did not pay him.

As a result, we find that the Petitioner has made the requisite showing of corrupt intent.

2. Kennedy Accepted These Payments In Return For Being Influenced In His Performance Of Any Official Act Or Any Act Within His Official Responsibility.

A. Kennedy's own admissions establish the quid pro quo

Kennedy's admissions about "making the process go more smoothly" for Landers in exchange for the payments also support a finding that his arrangement with Edwards involved a quid pro quo, i.e., that he received the payments from Edwards "in return for being influenced in his performance of any official act or any act within his official responsibility." [8] The Supreme Judicial Court has commented that bribery "typically involves a quid pro quo, in which the giver corruptly intends to influence an official act through a 'gift' and that 'gift' motivates an official to perform an official act. In effect, what is contemplated is an exchange, involving a two-way nexus." [9]

For his part, Edwards explained that it was Kennedy's responsibility to make out pay slips and that there could be delays if payment slips were not submitted timely. He testified that he "just sort of assumed that there might be a delay in paperwork" if he did not pay Kennedy for gas receipts. Edwards "had the sense" that if they paid Kennedy the gasoline reimbursements, things would go smoothly. Edwards testified, "My belief was that it would make things go easier," and he did not want any delays. In sum, the evidence shows that Kennedy and Edwards each separately understood that Kennedy could make the process harder or easier for Landers, and that Kennedy would not cause delays and would make the process easier if Edwards paid him. [10]

Kennedy objects that there is no evidence that Kennedy and Edwards expressly communicated with each other about an exchange of payments for official favor. Kennedy contends that a separate understanding by Kennedy and by Edwards without any communication of the understanding is insufficient to establish that the payments were made by Edwards and received by Kennedy "in return for" Kennedy being influenced in the performance of his official acts. We disagree.

Contrary to Kennedy's suggestion, there is no requirement that participants to a bribe have an express agreement or overt communication concerning the quid pro quo. In United States v. Jennings, 160 F.3d 1006 (4 th Cir. 1998), the Fourth Circuit, considering the analogous federal gratuity statute, held that "[t]o prove bribery under §201, the government is not required to prove an expressed intention (or agreement) to engage in a quid pro quo. Such an intent may be established by circumstantial evidence." [11] Here, the circumstances set forth above-including Respondent's own admissions-make clear that there was a quid pro quo. Both Edwards and Kennedy had the same understanding about the benefit to be received in exchange for the payments: these payments were given to Kennedy to ensure that the Route 44 Highway Project would proceed smoothly.

For his part, Kennedy ensured that the project would proceed apace in at least two respects as discussed in greater detail below. First, he made sure that there were no delays in the paperwork required before payments could be made to Landers. Second, he approved and signed off on asphalt deliveries without making the requisite inspections.

B. These payments influenced Kennedy's official acts

1. Processing paperwork for payment

Both McGovern and Edwards testified that there were no delays in Kennedy's processing of paperwork or in payments to Landers after Kennedy received gasoline reimbursements from Edwards. In light of Kennedy's admissions about making the project go smoother for Landers, the absence of delays is proof that the payments influenced Kennedy to be conscientious about processing Landers' paperwork in a timely manner.

Kennedy points out, however, that McGovern and Edwards also testified that there were no delays before Kennedy received payments from Edwards. Kennedy contends that the absence of delays both before and after Kennedy received payments from Edwards shows that the payments did not influence Kennedy to process paperwork more quickly or any differently than he previously had. In addition, Kennedy protests that while receiving the payments from Edwards, Kennedy did not do anything beyond what his job already required him to do anyway: he already was supposed to process paperwork without delay.

Keeping things the same, however, is precisely what Edwards paid Kennedy to do. From Landers' perspective, Kennedy "just doing his job" was preferable to the implied alternative, that he would cause delays. This meant "just doing his job"-without causing any problems or delays -- had value to Landers that Kennedy could use as leverage to extract payments from Edwards.

The key question is whether performance of his official acts is what Kennedy gave in exchange for corruptly receiving payment. As stated in United States v. Quinn, 359 F.3d 666 (4 th Cir. 2004):

It is not a defense that the official act sought to be influenced would have been done anyway regardless of the fact that the bribe was received or accepted. That is to say, even if the defendant acted as he or she normally would if the bribe had not been requested, the crime of bribery has still been committed… (citation omitted).

… The critical question is whether the government official solicited something of value with a corrupt intent, i.e., in exchange for an official act. [12]

2. Inspections and certification of weight slips

During the period when Kennedy was receiving payments and not requiring Landers "to dot every i and cross every t," Kennedy signed six weight slips for asphalt deliveries without conducting proper inspections. We find that the payments at issue influenced Kennedy to depart from required procedure in order to benefit Landers.

Every delivery of asphalt to the Rt. 44 project was to be inspected by a Mass Highway inspector. Kennedy's duty as an inspector was to inspect each truckload prior to certifying the weight slips to verify the amount, quality, and temperature of the asphalt. Kennedy's signature on a weight slip would indicate that Kennedy actually witnessed the asphalt being delivered. Kennedy could send the truck back if there was a problem. Kennedy also was supposed to do yield measurements, i.e. to multiply the length times the width of the asphalt used on the ground to compare it with the amount in the truck. If there was a significant inconsistency between his rough yield calculations and the weight slips, Kennedy could stop the operation.

On Saturday, June 29, 2002, Kennedy was the only inspector for paving operations at the project site. During his interview, Kennedy admitted to Agent Damiani that on June 29, 2002, he certified and signed six weight slips indicating that he had inspected the deliveries, but in fact he was not present to do the inspections. Kennedy told Damiani that toward the end of the day, he borrowed a car from one of the MassHighway employees and returned to the MassHighway office for a while. When he returned to the project site, there were some slips for asphalt supposedly pertaining to deliveries of asphalt. Kennedy measured the area that had been paved that day. He then signed the slips and put them with the other slips.

According to Agent Damiani, the DOT investigation found that in some instances, Landers sent a fictitious ticket to the project, i.e., a ticket for a load of asphalt that did not exist. There were allegations that such tickets were generated on June 29, 2002. Referring to Kennedy's statement that he did not witness the deliveries, Agent Damiani testified that "[w]e don't know if the deliveries were made" and "we don't know if they actually existed."

On the basis of this evidence, Kennedy broke from his official responsibilities: he signed weight slips without having actually witnessed the deliveries. Kennedy would have us look upon this aberration as an understandable accommodation to a long day's work. We disagree. Instead, Kennedy's signing off on deliveries that he never saw amounts to a clear instance in which he allowed the Route 44 Highway project to proceed "smoothly" at the same time he was seeking and accepting illicit reimbursement payments from Landers.

III. OTHER ALLEGATIONS -- § 3(b), § 23(b)(2) and § 23(b)(3)

The Second Amended Order to Show Cause includes allegations that Kennedy violated § 3(b), § 23(b)(2) and § 23(b)(3) as well as § 2(b). A violation of § 3(b) is a lesser included offense of § 2(b). [13] While the evidence shows that Kennedy also violated § 3(b), the conclusion that he violated § 2(b) makes it unnecessary to address the issue here.

In addition, inherent in the bribery violation by Kennedy is his use of his official position to secure an unwarranted privilege of substantial value for himself that was not properly available to similarly situated individuals. [14] Accordingly, while the evidence supports a finding that Kennedy violated § 23(b)(2), a separate penalty for such a violation would be duplicative.

Finally, Petitioner alleged that Kennedy violated § 23(b)(3). The allegation is that, in demanding and accepting bribes from Landers, Kennedy acted in a manner that would cause a reasonable person to conclude that Landers could unduly enjoy his favor or could improperly influence him in the performance of his official acts. To comply with § 23(b)(3), Kennedy either would have had to file a disclosure with his appointing authority disclosing the facts about the bribes or to recuse himself from performing official acts with regard to Landers. The purpose of a § 23(b)(3) disclosure is to dispel the "appearance" of a conflict, [15] however, and no explanation in a § 23(b)(3) disclosure could cause Kennedy's solicitation of bribes from Landers to be perceived as acceptable conduct. The Commission therefore finds no separate violation of § 23(b)(3).

IV. PENALTY

As a MassHighway inspector, Kennedy engaged in the most egregious type of breach of the public trust, exacting a price for the performance of his official duties and using his position to secure from a private contractor personal benefits to which he had no entitlement.

Under the authority granted to the Commission under G.L. c. 268B, § 4(j), for his violations of § 2(b), Kennedy is hereby ORDERED to pay a civil penalty of $6,000.

We assess this penalty based on at least three separate instances where Kennedy violated § 2(b). First, he impermissibly solicited and accepted payment for his damaged tire in exchange for treating Landers with leniency (as Kennedy himself termed it, an agreement not to "bust their balls"). Second, he thereafter impermissibly solicited and accepted reimbursements for his gasoline receipts in exchange for continued lenient treatment, including timely processing of paperwork (and again as Kennedy himself termed it, an agreement to refrain from requiring that Landers "dotted every i and crossed every t"). Finally, he impermissibly solicited and accepted reimbursement for his gasoline receipts in exchange for signing off on six separate asphalt deliveries, on or about June 29, 2002, all without having conducted the requisite inspections.

DATE AUTHORIZED: July 17, 2009

DATE ISSUED: July 27, 2009

//signed//
Hon. Charles B. Swartwood, III

//signed//
Matthew N. Kane

//signed//
Jeanne Kempthorne

//signed//
Hon. Patrick King

NOTICE OF APPEAL

Respondent is notified of his right to appeal this Decision and Order pursuant to G.L. c. 268B, § 4(k) by filing a petition in Superior Court within 30 days of the issuance date.

BY FAX AND MAIL

To: Thomas A. Dougherty, Esq.
142 Main Street, Suite 402
Brockton, MA 02301

BY HAND

Stephen P. Fauteux, Esq.
Mark Walter, Esq.
State Ethics Commission
One Ashburton Place
Boston, MA 02108



[1] Originally, the case against Kennedy was consolidated with In re Terry Edwards, Docket No. 08-0006. The two cases were bifurcated on December 8, 2008, and the case against Kennedy proceeded to an adjudicatory hearing.

[2] Agent Damiani testified at the hearing concerning his December 29, 2003 interview of Kennedy. Mr. Kennedy's statements at that interview were admitted into evidence as admissions. "Any extrajudicial statement made by a party may be admitted in evidence against that party by an opponent, and will not be excluded on the grounds it constitutes hearsay." M. S. Brodin & M. Avery, Massachusetts Evidence § 8.6.1 at 502 (8 th ed. 2007).

[3] Petitioner alleges, but did not prove, that Kennedy first corruptly asked Edwards for a gas credit card. Special Agent Damiani had interviewed Edwards in the course of the DOT investigation. Damiani testified that Edwards told him that Kennedy first asked for a gasoline credit card, but Kennedy's superiors said no. There was no first-hand testimony by Edwards that Kennedy first asked for a credit card, however. Edwards was asked whether Kennedy asked to borrow the credit card from Landers that Edwards used to purchase gasoline, and Edwards testified that he had no memory of that. Edwards was not asked whether Kennedy requested a credit card for himself.

[4] See Com. v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976) (comparing "anything of value" in G.L. c. 268A, § 2(b) and "anything of substantial value" in G.L. c. 268A, § 3(b)).

[5] This figure also excludes two receipts that Kennedy submitted in December, 2001 and December, 2002, outside of the relevant time period.

[6] In re Jovanovic, 2002 SEC 1062, 1066 & n.27 ( quoting Webster's Third New International Dictionary (1993)).

[7] One exhibit indicated that MassHighway had an explicit policy that would prohibit an inspector from taking any type of gratuity from a company if he was inspecting the company's deliveries. The parties stipulated to an Interoffice Memorandum dated December 5, 1996, in which the Chief Counsel of MassHighway alerted MassHighway employees that "MassHighway policy prohibits an employee from accepting any gift or other form of gratuity of any value from a person or entity who is or may be doing business with MassHighway."

[8] G.L. c. 268A, § 2(b).

[9] Scaccia v. State Ethics Commission, 431 Mass. 351, 356 (2000).

[10] A suggestion by Kennedy that the payments were made for a different reason is rejected. Edwards testified that on a Saturday in July, 2002, he borrowed furniture from the Mass. Highway office for use at a private party at his home, and on Sunday morning, Kennedy picked it up at Edwards' house so he could use it. Edwards was asked four times whether he had any agreement to pay Kennedy for helping to load or move the furniture, and each time Edwards said there was no such agreement.

[11] Jennings, 160 F.3d at 1014.

[12] Quinn, 359 F.3d at 675.

[13] Scaccia, 431 Mass. at 356; Commonwealth v. Burke, 20 Mass. App. Ct. 489, 509 (1985); Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 376 (1976). The Commission can find that conduct violated either § 2(b) or § 3(b), but not both. See Dutney, 4 Mass. App. Ct. at 376-377.

[14] See In re Doughty, 1995 SEC 726, 727 n.7 (For a public employee "[t]o request or accept any item of more than nominal value… from private entities which have been, are, or may be subject to the public official's responsibilities and duties, is to use one's public position to secure an unwarranted privilege… and, in addition, necessarily creates the impression that the private entity may be improperly influencing or unduly enjoying the favor of the public official in the performance of their official duties.").

[15] See EC-COI-95-9.

End of Decision