Docket No. 597

In the Matter of Brian J. Martin

Date: November 18, 1999



DISPOSITION AGREEMENT


This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Brian J.
Martin ("Martin") pursuant to Section 5 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented-to
final order enforceable in the Superior Court, pursuant to G.L. c.
268B, s.40).

On September 3, 1998, the Commission initiated, pursuant
to G.L. c. 268B, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Martin. The Commission has concluded the inquiry and, on November
17, 1999, found reasonable cause to believe that Martin violated
G.L. c. 268A, s.23(b)(3).

The Commission and Martin now agree to the

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following findings of fact and conclusions of law:

1. Martin is the Lowell city manager. Martin was
appointed to this full-time, salaried position by the Lowell City
Council ("City Council") in August 1995. Martin was a Lowell
assistant city manager from 1989 to August 1995 and a Lowell city
council or from 1981 until 1989. In 1984 and 1985, Martin was
Lowell's mayor.

2. As Lowell city manager, Martin is the city's chief
executive officer. As such, Martin is the awarding authority for
city contracts.

3. Lowell has four municipal public parking garages and
one municipal public parking lot. The city contracts with a private
security company for security at its public parking facilities.
Under the contract for security services for Lowell's public
parking facilities ("the security contract"), the security company
provides uniformed security guards to patrol the city's public
parking facilities for a specified number of hours per week,
according to the agreed daily schedule for each garage. During the
period here relevant, none of Lowell's public parking facilities
had full-time, i.e., 24-hours-per-day-seven-days-per-week,
security.

4. Since 1978, Lowell Municipal Parking Garage
Administrator A.L. "Ed" Trudel ("Trudel") has had responsibility
for supervising the municipal parking facilities' security
provider. Until 1996, Trudel was the city official who recommended
to the city manager which security company should be hired. Until
1996, Trudel used an invitation to bid process to select the lowest
responsible and responsive bidder to recommend to the city manager
for the award of the security contract,[1/] In 1990 and again in
1993, Trudel selected Reliable Security Guard Agency, Inc.
("Reliable") of Salem, New Hampshire, pursuant to an invitation to
bid process, to recommend to the city manager, and Reliable was
awarded the security contract for three-year periods respectively
ending June 30, 1993 and June 30, 1996.[2/]

5. In February 1996, because the security contract was
then coming due to be rebid for a new three-year period, Trudel
sent a draft of a proposed invitation to bid for the contract to
the Lowell city solicitor's office for review. After discussion
with City Solicitor Thomas E. Sweeney ("Sweeney"), Martin directed
Trudel to use a request for proposal ("RFP") process for the
security contract instead of the invitation to bid process.[3/]
Because Martin chose to have the RFP process used, Martin
subsequently was not bound by G.L. c. 30B, s.5 to award the
security contract to the lowest bidder, but instead was permitted
under G.L. c. 30B, s.6 to award the contract to an offeror who did
not submit the lowest price proposal.[4/]

6. In early April 1996, the city issued an RFP for the
security contract and Martin appointed a committee of five persons,
with Trudel as chairman, to review the security contract proposals
and select a security company to recommend to Martin for the award
of the security contract.

7. At all times here relevant, Francis J. Elliott
("Elliott") and Raymond F. Rails ("Ralls")were the owners and
officers of National. During the relevant period, the security
company operated from offices at 131 East Merrimack Street, Lowell.

8. At all times here relevant, Martin was friends with
Elliott and Ralls.[5/] In 1996, Martin, Rails and Elliott were all
longtime members of the Lowell YMCA. Martin, Martin's father (also
a long time Lowell YMCA member), Rails and Elliott played handball
together at the YMCA for a number of years and had, as of 1996,
known each other for many years. This YMCA membership and handball
connection existed and remained intact throughout 1996.
Additionally, in the early 1990s, Martin, his late brother (who was
then i11), Rails and several other persons traveled together to
Atlantic City, New Jersey, where they visited several casinos. Also
in the early 1990s, Martin, his father, and several other persons
traveled together to Foxwoods casino ("Foxwoods") in Connecticut to
celebrate Martin's father's birthday and Rails, who was at Foxwoods
joined the celebration.

9. In early April 1996, Martin made a day trip to
Foxwoods with Rails and Elliott and two or three other persons. The
group traveled together in a rented limousine. Martin paid his own
expenses for the day trip. Martin paid for his share of the cost of
the limousine at National's Lowell headquarters the day after the
trip.

10. In May 1996, the security contract RFP committee was
unable to decide to whom the contract should be awarded.[6/] The
RFP committee opened the proponents' price proposals[7/]
prematurely in violation of G.L. c. 30B. Trudel informed City
Solicitor Sweeney of this situation and Sweeney advised Trudel to
cancel the RFP. Thus, the first security contract RFP fell through.

11. On or about May 29, 1996, after discussion with
Sweeney, Martin informed Lowell Police Superintendent Edward F.
Davis, III ("Davis") that Martin was assigning the Lowell police
department ("police department") the task of selecting a security
company to recommend to Martin pursuant to a new security contract
RFP. Davis, in turn, delegated the security contract RFP
responsibilities to Captain Chauncy E. Normandin ("Normandin").

12. The second security contract RFP was issued on or
about July 13, 1996 and then reissued on or about August 3, 1996,
apparently because the July RFP was not properly published. Four
security companies, including Reliable and National, submitted
proposals at the police department on August 28, 1996.

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13. In or about early July 1996, Davis was asked for
documentation of vandalism and theft in the municipal parking
garages during Reliable's tenure as the garage security
contractor[8/] Davis in turn asked Normandin to obtain such
documentation from existing police records. When Nonrmandin
reported to Davis that there were no existing police reports of
vandalism and theft in the garages, Davis asked Normandin to obtain
vandalism and theft documentation from the head of the police
department's narcotics bureau, Lt. William Busby ("Busby").[9/]

14. On July 17, 1996, Busby wrote a memorandum to Davis
concerning vandalism and theft at the Ayotte Garage where the
police department then had two fenced lots for impounded vehicles.
Busby's memorandum referred only to the Ayotte Garage and generally
described vandalism and theft involving several vehicles over a one
and one half year period, but did not give any specifies as to when
the vandalism and theft occurred.[10/] The memorandum further
stated Busby's opinion that the then current garage security
company (Reliable) was not providing the services for which it was
being paid.[/11]

15. As of July 17, 1996, the police department had never
complained to Reliable about vandalism and theft at the Ayotte
Garage. Nor had the police department ever complained to Trudel or
to Martin or to anyone else in the city administration about
Reliable's performance. While apparently certain vehicles parked in
the Ayotte Garage had been vandalized and items had been stolen
from parked vehicles, the police department had, as of July 17,
1996, made no effort to determine whether the vandalism and thefts
had occurred while Reliable employees were on duty and, thus,
whether the vandalism and thefts were in fact attributable to any
failure by Reliable to adequately perform its duties under the
security contract.[12/]

16. On September 11, 1996, Normandin sent Martin his
evaluations of the RFP proponents. Nonrmandin: (1) disqualified one
proponent as "non-responsive", (2) found one proponent to be only
"advantageous", and (3) found two proponents, Reliable and
National, each to be "highly advantageous." Along with his
evaluations and reference checks done by a fellow police
officer,[13/] Normandin provided Martin with a copy of Busby's July
17,1996 memorandum.

17. Upon receiving from Normandin the evaluations,
references and Busby's July 17, 1996 memorandum on September 11,
1996, Martin did not make any effort to determine whether Reliable
was in fact responsible for the vandalism and theft reported in the
Busby memorandum. For example, Martin did not ask the police
department why it had not previously complained about Reliable's
performance. Martin also did not discuss the Busby memorandum with
Normandin, Davis or Busby. Nor did Martin ask Trudel, the city
official with the greatest knowledge of Reliable's job performance,
whether there was a vandalism problem in the city parking
garages.[14/] [15/]

18. On September 13, 1996, Martin awarded the security
contract to National. Martin's award decision was explained in a
September 13, 1996 public document entitled "Report of Awarding
Authority." According to the report, the security contract was
awarded to National (despite Reliable's lower price proposal)[16/]
due to "substandard performance" by Reliable, citing incidents of
vandalism to and thefts from vehicles at the Ayotte Garage as
described in Busby's July 17,1996 memorandum. Also on September 13,
1996, Martin by letter to Elliott notified National of the security
contract award to National. A letter of the same date informed
Reliable of the award to National.

19. Reliable protested the security contract award to
National to the state Inspector General. This protest delayed the
formal award of the security contract to National and the execution
of the contract between National and Lowell for nearly two months.

20. The Inspector General asked for an explanation of the
award of the security contract to National. In response, on
September 30, 1996, Sweeney provided the Inspector General with a
copy of the September 13, 1996 Report of the Awarding Authority. On
November 6, 1996, Sweeney advised the Inspector General that during
Reliable's last three years of service under the security contract
there had been ninety acts of vandalism or theft reported in the
city parking garages, of which twenty-three acts had occurred while
Reliable was apparently on duty.[17/] Having received this
explanation, the Inspector General took no action concerning the
award of the security contract to National.[18/]

21. On November 8,1996, the city and National executed a
contract for garage security services through June 30, 1999.[19/]
The contract was signed by Martin, Sweeney and City Auditor James
T. Kennedy on behalf of the City of Lowell and by Elliott on behalf
of National.

22. At no time during the security contract RFP and award
process did Martin disclose to his appointing authority, the City
Council, that he was longtime friends with the owners of National
and had made trips with them to Foxwoods and Atlantic City. Nor did
Martin, prior to or at the time of the award of the security
contract, disclose to the City Council that he was awarding the
security contract to National despite the fact that National's
price proposal was, by a substantial margin, not the lowest
submitted in response to the RFP. Finally, Martin did not, prior to
or at the time of the award of the security contract, disclose to
his appointing authority his basis for not awarding the security
contract to Reliable, the company that submitted the lowest price
proposal.[20/]

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23. On February 19, 1997, Reliable filed suit against
Lowell in Middlesex Superior Court alleging bad faith by the city
in awarding the security contract to National. The complaint
alleged that Martin favored National in the award of the contract
because of his personal relationship with the company's owners. The
case was settled in April 1999. Lowell, without admitting
liability, paid Reliable nearly $70,000 to settle the lawsuit.

24. As Lowell city manager, Martin is a municipal
employee as defined in G.L. c. 268A, s.1. As such, Martin is
subject to the provisions of the conflict of interest law, G.L. c.
268A.

25. General Laws chapter 268A, s.23(b)(3), in relevant
part, prohibits a municipal employee from, knowingly or with reason
to know, acting in a manner which would cause a reasonable person
having knowledge of the relevant circumstances, to conclude that
any person can improperly influence the employee or unduly enjoy
the employee's favor in the performance of the employee's official
duties, or that the employee is likely to act or fail to act as the
result of kinship, rank, position or undue influence of any part or
person. Section 23(b)(3) further provides, as to appointed
employees such as Martin, that "[i]t shall be unreasonable to so
conclude if such officer or employee has disclosed in writing to
his appointing authority... the facts which would otherwise lead to
such a conclusion."

26. Martin, by awarding the security contract to
National, a company owned by two of his friends with whom he had
made trips to Foxwoods and Atlantic City, particularly where
National's price proposal was, by a substantial margin, not the
lowest one submitted and where, under the above-stated
circumstances, the expressed basis for rejecting the lowest price
proposal was questionable,[21/] knowingly acted in a manner which
would cause a reasonable person with knowledge of the relevant
circumstances to conclude that National's owners Rails and Elliott
could improperly influence Martin or unduly enjoy Martin's favor in
the performance of his official duties as city manager. In so
doing, Martin violated s.23(b)(3).[22/]

In view of the foregoing violation of G.L. c. 268A by
Martin, the Commission has determined that the public interest would
be served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Martin:

(1) that Martin pay the Commission the sum of one
thousand seven hundred and fifty dollars ($1,750.00) as
a civil penalty for violating G.L. c. 268A,
s.23(b)(3);[23/] and

(2) that Martin waive all rights to contest the finding
of fact, conclusions of law and terms and conditions
contained in the Agreement in this or any related
administrative or judicial proceedings to which the
Commission is or may be a party.

------------------------

[1/] Pursuant to G.L. c. 30B, s.5, where the invitation for
bids process is used. the contract must be awarded to the "lowest
responsible and responsive bidder."

[2/] Reliable submitted a lower bid than the other bidders,
including a Lowell-based security company, National Security
Protective Services. Inc. (-National"). National had held the
security contract in the late 1980s, but was terminated by Trudel
in November 1988 prior to the end of the three-year contract
period.

[3/] Martin had received complaints about the invitation to
bid process from prior unsuccessful bidders on the security
contract. Martin discussed the complaints with Sweeney, who advised
Martin that the RFP process could be used and that a contract could
be awarded to a company not submitting the lowest price proposal.
Sweeney also advised Martin that Martin needed a good reason for
by-passing the lowest bidder and that the reason had to be stated
in writing.

[4/] Under G.L. c. 30B, s.6, when the RFP process is used, the
contract may be awarded to the offeror who did not submit the
lowest price provided that "the chief procurement officer shall
explain the reasons for the award in writing, specifying in
reasonable detail the basis for determining that the quality of
supplies or services under the contract will not exceed the
governmental body's actual needs."

[5/] Martin, Rails and Elliott all testified that Martin is
friends with Ralls and Elliott; none testified, however, that
Martin is particularly close friends with either Ralls or Elliott.

[6/] Both Reliable and National were among the security
companies which submitted proposals in response to the April 1996
security contract RFP. The committee split between those members
favoring Reliable and those favoring National.

[7/] Reliable's price proposal was lower than National's.

[8/] According to Davis, the request came from Lowell City
Hall. Also according to Davis, he cannot recall specifically from
whom he received the request, but his best recollection is that it
came from either Martin or Sweeney. Sweeney denies that he or
anyone in the city solicitor's office made the request. According
to Martin, he has no recollection of discussing garage vandalism
and theft with Davis or of asking Davis for documentation of such
vandalism and theft. Based upon its investigation, the Commission
concludes that Martin requested the garage vandalism and theft
documentation.

[9/] Prior to becoming police superintendent, Davis had been
head of the narcotics bureau.

[10/] These acts of vandalism and theft had not been made the
subjects of police reports and thus no record of the dates and
times of the acts existed at the time Busby wrote his memorandum.

[11/] During the relevant period, the Ayotte Garage was,
pursuant to the security contract, not guarded by Reliable on a
full-time (24-hours-per-day-seven-days-per-week) basis. Busby
testified that he was not aware of this fact in July 1996. Busby
testified that, at the time of his memorandum to Davis, he did not
park in the Ayotte Garage. had never read the security contract,
had never spoken with any security company employees about garage
security, and did not know the name of the then current security
company. Busby further testified that he would not have stated in
his July 17, 1996 memorandum that

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the security company was not providing the services for which it
was being paid had he known that the company was not contractually
required to provide full-time security at the Ayotte Garage.

[12/] In the Commission's view, the police department's
failure to complain to Reliable or the city administration about
the Ayotte Garage vandalism and thefts indicates that the police
department either did not consider the vandalism and thefts to be
significant or did not consider Reliable to be responsible for the
problems at the Ayotte Garage.

[13/] Reliable's references were favorable, as were those of
National.

[14/] Based upon its investigation. the Commission concludes
that had Martin asked Trudel. Trudel would have informed Martin
that Reliable's performance was satisfactory and that, based upon
Trudel's years of experience with Lowell's public parking
facilities. the amount of theft and vandalism which occurred in the
garages did not exceed the amount which is, as a practical matter,
unavoidable in such facilities.

[15/] Martin maintains that under G.L. c. 30B, s.6, he was
only required to explain his reasons for the security contract
award in writing. which, in Martin's view, he did on September 13,
1996. as described infra in paragraph 18. The Commission makes no
finding as to whether Martin complied with G.L. c. 30B. In any
case. Martin*s purported compliance with the specific requirements
of G.L. c. 3013. s.6. did not avoid his violation of the conflict
of interest law, G.L. c. 268A, as set forth in this Agreement.

[16/] On its face, Reliable's price proposal was $148,397.33
lower than National's because National had mistakenly based its
price on a full three-year contract period whereas Reliable had
properly based its price on the less than three-year period stated
in the August RFP, In fact, Reliable's price was about$] 00,000
lower than National's for the actual security contract period.

[17/] Thus. according to Sweeney's figures (which were based
on information Sweeney obtained from Trudel after September 13,
1996), more than two thirds of the vandalism and thefts at the city
parking garages occurred when Reliable was not on duty and there
were slightly fewer than eight reported thefts or acts of vandalism
per year while Reliable was on duty, or about two such acts per
year per garage.

[18/] Sweeney also asserted to the Inspector General that
Reliable's bid was non-responsive to the RFP in the manner in which
its price proposal was stated and should be rejected on that basis
alone. In fact, however, Reliable's price proposal was in the
proper form and that submitted by National was not, as set forth
above in footnote 16.

[19/] Pursuant to the security contract, the city agreed to
pay National a total not to exceed $783,198.30.

[20/] Martin did not, prior to or at the time of the award of
the security contract, provide the City Council with a copy of the
"Report of Awarding Authority."

[21/] This is not to say that an impartial awarding authority
could not have made the same decision as Martin and awarded the
security contract to National. It is to say, however, that in the
Commission's view the expressed rationale for Martin's decision was
so apparently weak as to, combined with Martin's friendship and
gambling trips with Rails and Elliott, give the appearance of being
a pretext for the contract award to National.

[22/] Martin could have avoided violating s.23(b)(3) by
disclosing the relevant facts in writing to his appointing
authority, the City Council. prior to his taking any official
action concerning the award of the security contract to National.
Martin, however, as set forth above. made no such disclosure.

[23/] That the Commission has imposed a substantial fine in
this case is reflective of the seriousness of Martin's violation of
s.23(b)(3). The Commission notes that if, prior to awarding the
security contract to National in September 1996. Martin had
disclosed to his appointing authority (the City Council) that he
was friends with the company's owners and had made gambling trips
with them and that National's price proposal was not the lowest one
submitted, the City Council might have decided that Martin should
not participate in the contract award or have required from him a
stronger justification for the award to National. Furthermore,
Martin's failure to make the required disclosures, followed by the
relevant circumstances subsequently becoming public in the context
of the Reliable lawsuit, cast a cloud of suspicion over the
security contract award and tended to undermine public confidence
in the fairness of government contract awards in Lowell. In
addition, Martin's actions triggered Reliable's lawsuit and led to
Lowell paying Reliable nearly $70,000.

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End of Decision