The State Ethics Commission and Harold Roeder enter into this Disposition Agreement 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. 4(j).
On June 8, 2006, 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 Roeder. The Commission concluded its inquiry and, on April 25, 2007, found reasonable cause to believe that Roeder violated G.L. c. 268A.
The Commission and Roeder now agree to the following findings of fact and conclusions of law.
Findings of Fact
1. Roeder served as the Georgetown Fire Department ("the Fire Department") deputy chief from May 1998 to April 2002. In April, 2002 he was elected the Fire Department chief by a vote of the Georgetown Board of Fire Engineers.
2. The Georgetown Board of Fire Engineers is responsible for the administration of the Fire Department; it meets once per month and consists of the fire chief and four deputies. The Fire Department consists of part-time volunteer firefighters who hold other full time jobs.
3. At all times relevant to the matters before the Commission, Roeder was the president and owner of B&B Engineering Corporation, which also does business as L.W. Bills, Company ("L.W. Bills"), an alarm sales and service company located in Georgetown. He also worked as a paid employee of that company.
4. On July 1, 1999, the Massachusetts Executive Office for Administration and Finance Operational Services Division awarded L.W. Bills a statewide contract to provide firefighting, forestry, emergency medical, rescue equipment and supplies to state departments, cities, towns and political subdivisions. This designation allows covered state and municipal agencies to hire vendors on the statewide contract without putting certain contracts out for public bid. On March 27, 2003, L.W. Bills was awarded another statewide contract, extending its eligibility to provide no-bid services for 24 months.
5. L.W. Bills had performed emergency repair and maintenance work on the Georgetown Fire Department's alarm system since 1968. The extent of the services provided during any year varied greatly, and none were provided pursuant to L.W. Bills' statewide contracts. However, in 2000, L.W. Bills performed work for the Georgetown Police Department pursuant to its statewide contract.
6. In 2003, the Massachusetts Highway Department ("Mass Highway") planned to reconstruct portions of Main Street in Georgetown. This work required the town to upgrade and/or relocate its fire alarm distribution facilities, which Mass Highway would pay for, in part with federal funds.
7. On October 23, 2003, Mass Highway notified the Fire Department of the impending construction and requested an estimate for the Fire Department's portion of the work, which involved relocating the municipal alarm wiring that would be impacted by the telephone poles being moved to accommodate the street widening.
8. In or about February, 2004, L.W. Bills provided the Fire Department with an estimate of the costs of labor and material to complete the project. On February 17, 2004, the Fire Department, incorporating the figures provided by L.W. Bills, submitted the required estimate to Mass Highway in response to its request. Consistent with common business practice in this industry, L.W. Bills did not charge for the services related to the estimate.
9. The Board of Fire Engineers discussed the Main Street fire alarm project at one of its meetings in early 2004. At such time, a Board member suggested that the Fire Department request bids from local contractors to perform the work. In response, Roeder said that L.W. Bills is on a state bid list and therefore we don't have to put the work out to bid, or words to that effect. When Roeder made his statement, certain members of the Board of Fire Engineers believed that Roeder was indicating that there was no need to put the contract out to bid because L.W. Bills would be selected off the state vendor list to perform the alarm project.
10. At the February 2004 meeting of the Board of Fire Engineers, Roeder notified the Board that he intended to retire from the Fire Department effective April 30, 2004.
11. On March 8, 2004, Mass Highway sent contract documents for the project to the Georgetown Fire Department to be signed by the proper authorities. Three Fire Department deputies signed the contract, but Roeder did not sign the document.
12. On April 27, 2004, Mass Highway sent a Notice to the Fire Department to proceed with the alarm project in accordance with the terms and conditions of the contract.
13. The contract between the Fire Department and Mass Highway allowed for the Fire Department to choose one of three options to accomplish the fire alarm system work: by designating its own forces; by selecting a contractor who is the lowest qualified bidder based upon an appropriate solicitation; or, by a continuing contract subject to approval of Mass Highway under which certain work is regularly performed for the Fire Department (i.e., a designated pre-approved vendor).
14. On April 30, 2004, Roeder retired from the Fire Department and Deputy Chief John Durkee became the Fire Department Chief. In or about June, 2004, it became clear to Durkee that although the alarm relocation work needed to commence shortly, there was no written contract in place between the Fire Department and any vendor to do the work.
15. In August, 2004, the town arranged with the Georgetown Light Department to perform part of the work and put the remaining work out to bid. The alarm system work was completed on or about September 8, 2004.
16. L.W. Bills did not submit a bid and did not do the work.
17. As the Georgetown Fire Department chief, Roeder was a municipal employee as defined by G.L. c. 268A, s. 1(g).
18. Section 23(b)(3) of G.L. c. 268A 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 or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.
19. Roeder acted officially as fire chief by discussing the alarm project at a meeting of the Board of Fire Engineers and saying to the Board members that L.W. Bills is on a state bid list and therefore we don't have to put the work out to bid, or words to that effect.
20. At the time he made his statement, Roeder was the president and owner of the entity doing business under the name of L.W. Bills, which had previously done emergency and repair work for the Fire Department for over 25 years. L.W. Bills had also previously performed work for another town agency pursuant to one of L.W. Bills' statewide contracts. By saying that L.W. Bills is on a state bid list and therefore we don't have to put the work out to bid, or words to that effect, Roeder acted in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that Roeder could be influenced as fire chief by L.W. Bills' possible interest in the Mass Highway contract. In other words, a reasonable person would conclude that Roeder's comments were intended to facilitate having the contract go to L.W. Bills. Apparently as a result of Roeder's statement, the Fire Department took no steps to arrange for the performance of the work until Chief Durkee realized that there was no contract with a vendor to perform the work.
21. According to Roeder, his comments were not intended to indicate to the Board of Fire Engineers that L.W. Bills would be selected to perform the alarm project work. Rather, he was attempting to explain the option provided in state contracts to select a pre-approved contractor instead of putting a contract out to bid. Roeder acknowledges, however, that such a comment could have been reasonably perceived as giving the appearance that L.W. Bills could unduly enjoy his favor in the performance of his Fire Department duties.
22. Thus, Roeder knew or had reason to know that he was acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that L.W. Bills could improperly influence or unduly enjoy his favor in the performance of his official duties or that Roeder was likely to act or fail to act as fire chief regarding the award of the fire alarm project as a result of his position with L.W. Bills.
23. Therefore, by acting as described above, Roeder violated s. 23(b)(3).
In view of the foregoing violation of G.L. c. 268A by Roeder, 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 Roeder:
(1) that Roeder pay to the Commission the sum of $1,500 as a civil penalty for violating G.L. c. 268A as noted above; and
(2) Roeder waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in this or any other related administrative or judicial proceedings to which the Commission is or may be a party.
DATE ISSUED: March 5, 2008