January 23, 2009
Decision and Order


Appearances: Candies Pruitt-Doncaster, Esq.
Counsel for Petitioner

Paul J. Murphy, Esq.
Kevin T. Smith, Esq.
Counsel for Respondents Thomas E. Riley, Jr. and
P.J.Riley & Company

Joseph W. Monahan, III, Esq.
Thomas J. Freda, Esq.
Counsel for Respondent Taylor Roth

Commissioners: Matthew N. Kane, Jeanne M. Kempthorne and Patrick J. King [1]

Presiding Officer: Jeanne M. Kempthorne, Commissioner

Decision and Order


Background and Procedural History

These adjudicatory proceedings were commenced on April 23, 2008, with the issuance of three Orders to Show Cause. Answers were filed in mid-May. The Commission subsequently ordered the matters consolidated pursuant to 930 CMR 1.01(6)(g).

Respondent Taylor Roth ("Roth") is a senior inspector for the state Board of Examiners of Plumbers and Gasfitters ("Board"). Respondent P.J. Riley & Company ("Riley & Co.") is a state plumbing and gas-fitting contractor and Respondent Thomas E. Riley, Jr. ("Riley") is the company's executive vice president.

This consolidated matter concerns Roth's alleged receipt of Boston Red Sox tickets from Riley and Riley & Co. (and the latter Respondents' alleged provision of said tickets) in 2004, 2005 and 2006 contemporaneously with Roth's issuance of permits for and inspection of gas and plumbing work performed by Riley & Co., in alleged violation of G. L. c. 268A, § 3 (by all three Respondents) and § 23(b)(2) and (3) (by Roth). More specifically, in each year Riley and Riley & Co. are alleged to have given, and Roth to have received a pair of Red Sox tickets, with a face value of $160 per pair, to a single game for or because of Roth's official acts of conducting inspections of Riley & Co.'s plumbing work, i.e., to reward or influence Roth's official acts.

In their Answers, the three Respondents deny that they violated G. L. c. 268A. Roth denies that he received any tickets in 2004 and 2005, and states that he turned over the tickets he unexpectedly received in 2006 to Legal Counsel for the Board ("Board Counsel") and, therefore, could not have violated G. L. c. 268A, §§ 3(b) [2] and 23(b)(2) and (3). [3] Riley and Riley & Co. admit that they gave a pair of tickets to Roth in each of the years 2004, 2005 and 2006, but assert that they did not do so "for or because of any official act" by Roth and, thus, could not have violated G. L. c. 268A, § 3(a). [4]

Respondents Riley and Riley & Co. filed a joint motion for summary decision, pursuant to 930 CMR 1.01(6)(f)(1), together with a supporting memorandum, statement of facts, affidavits and exhibits. Respondent Roth filed his separate motion for summary decision, pursuant to 930 CMR 1.01(6)(f)(1), together with a supporting memorandum, affidavits and exhibits. Petitioner filed two memoranda in opposition to the Respondents' motions, together with supporting affidavits and exhibits. Respondents Riley and Riley & Co. also filed a joint reply memorandum.

The Law of Summary Decision

A motion for summary decision is like a motion for summary judgment under Mass. R. Civ. P. 56. Summary decision may be granted "if the pleadings, depositions, answers to interrogatories…together with the affidavits…show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Taylor v. Board of Appeals of Lexington, 68 Mass. App. Ct. 503, 508 (2007) (quoting Mass. R. Civ. P. 56). In a case where the opposing party has the burden of proof at trial, the moving party "is entitled to summary judgment if [the moving party] demonstrates…that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Correia v. Fagan, 452 Mass. 120, 129 (2008) (quoting Kourouvcilis v. General Motors Corp., 410 Mass. 706, 716 (1991)). A party moving for summary judgment must demonstrate the absence of a triable issue of fact on every relevant issue raised by the pleadings and that it is entitled to judgment as a matter of law. Kourouvcilis at 711. All evidence must be viewed in the light most favorable to the non-moving party. Williams v. Hartman, 413 Mass. 398, 401 (1992).

Under the regulation, 930 CMR 1.01(6)(f)(1), a summary decision motion may be denied by the Presiding Officer, but may be granted only by the Commission itself.

Summary of the Facts in the Light Most Favorable to Petitioner

Roth is a senior inspector for the Board. As such, Roth inspects plumbing and gas pipefitting work performed on buildings owned by the Commonwealth for compliance with state plumbing and gas pipefitting codes. As a state inspector, Roth may pass or fail a project for compliance or non-compliance with the codes. Upon a finding of "leaks, defective or patched material, or evidence of unskilled or inferior workmanship" by Roth, no further progress is allowed until these issues are addressed.

Riley & Company is a Boston-based mechanical construction company focusing on public and private plumbing and gas pipefitting work. Riley is a principal of the company and its executive vice president. Edward Kilnapp ("Kilnapp") is Riley's assistant.

Between 2004 and 2006, Roth conducted inspections of Riley & Co.'s work on the following sites and dates: (1) Mass Highway Dewey Square Vent Building, Boston, 2/12/04, 3/23/04, 3/25/04 and 4/5/04; (2) MWRA Pump Station, Weymouth, 11/10/04; (3) Massport Black Falcon Terminal, Boston, 1/3/05, 3/21/05, 5/3/05 and 6/20/05; (4) MWRA Union Park, Boston, 2/16/05, 7/13/05, 9/13/05, 1/10/06, 2/13/06, 3/15/06 and 4/6/06; (5) MWRA Deer Island Plant, Boston, 9/14/05 and 2/14/06; (6) MCI Baystate Prison, Norfolk, 1/23/06; and (6) MTA Sumner/Callahan Vent Buildings, Boston, 3/21/06. (In the larger period of 2002 through March 2006, Roth conducted a total of about 49 inspections of Riley & Co.'s work on many of its eighteen public projects. Roth signed 15 of the company's 18 permits.) Roth did not always pass the Riley & Co. work he inspected.

Riley & Co. has held Red Sox season tickets since World War II. Between February and March each year, after receiving them from the Red Sox, Riley distributes a pair of tickets to 40 to 50 games to employees, friends, business acquaintances, social acquaintances and local charities on behalf of Riley & Co. The Red Sox tickets are business expenses for the company.

Between February and March of each of the years 2004, 2005 and 2006, Riley & Co. through Riley offered and gave to Roth a pair of Red Sox tickets for a single game. Roth agreed to accept and received the tickets. Roth thanked Riley for the tickets. Roth was the only public employee to whom Riley and Riley & Co. gave Red Sox tickets.

In each case, the face value of each Red Sox ticket was $80. Riley and Roth are not personal friends, but did socialize at some plumbing industry events. In each of the years 2004, 2005 and 2006, Roth conducted two to three inspections of Riley & Co.'s work during the February and March period during which he received the company's Red Sox tickets.

In 2006, the pair of Red Sox tickets was offered to Roth by Riley through Kilnapp while the latter was talking by telephone with Roth in order to arrange an inspection of Riley & Co.'s work at the MTA Sumner/Callahan Vent Buildings where there was an existing engineering defect that had been the subject of communications between the company and Roth and his colleagues since October, 2005. Roth agreed to accept the tickets and asked Kilnapp to send the tickets to his home. Roth performed the requested inspection, which was a permit termination inspection, on March 21, 2006, and failed the work due to the engineering defect. Riley & Co. was not responsible for the engineering defect. After receiving the tickets and consulting with his father and wife, Roth turned the tickets over to Board Counsel.

Riley and Riley & Co.'s Argument for Summary Decision

Riley and Riley & Co. argue that there are no facts that demonstrate any conceivable "linkage" between their gift of Red Sox tickets to Roth in 2004, 2005 and 2006 and any official act which Roth took in the past or was to take in the future on any Riley & Co. project. The fact that Riley & Co. gave Roth two tickets in the Spring of 2004, 2005 and 2006 as part of a seasonal practice in which it gave Red Sox tickets to its employees, friends, social and business acquaintances and charities, did not violate G. L. c. 268A, § 3(a), as construed by the Supreme Judicial Court in Scaccia v. State Ethics Commission, 431 Mass. 351 (2000).

According to Riley and Riley & Co., Petitioner's theories for linking their gifts to Roth's official acts as required by § 3(a) under Scaccia are dispelled by the undisputed facts. Thus, Petitioner's theory (stated in its interrogatory answers) that the tickets were given in 2004, 2005 and 2006 to enable Riley & Co. to collect the monies due on the public projects it worked on during those years is dispelled by the undisputed evidence showing that the payments to the company were not affected by Roth's official actions. Thus also, Petitioner's theory (stated in the Orders to Show Cause and in Petitioner's interrogatory answers) that the tickets given in 2006 were given to influence Roth to conduct an inspection of the Sumner/Callahan Project and to obtain Roth's approval to insulate the plumbing system is dispelled by the undisputed evidence that Roth was merely carrying out his regular and customary duties as a plumbing inspector under the applicable regulation when permits are to be terminated and that Roth did not do Riley & Co. a favor by, and the company did not receive any benefit from, [Roth's] doing the "walk-through" or termination inspection. Riley and Riley & Co. assert that Petitioner has not identified any facts that support the conclusion that the tickets were given to influence a present or future act by Roth or to reward him for a past action, as opposed to merely in an effort to develop good will with a person with whom they interacted on a regular basis.

Roth's Argument for Summary Decision

Roth asserts that Petitioner will not be able to prove that he received Red Sox tickets from Riley or Riley & Co. in 2004 and 2005, and, given that he turned in the tickets sent to him in 2006, that he "did not exercise dominion and control over" them, and, thus, he cannot be found to have received any tickets in violation of G. L. c. 268A, § 3(b). In addition, according to Roth, there is no evidence of any linkage between the alleged gifts and any official act by Roth as required by Scaccia, and thus, even if the Petitioner were able to prove that Roth received the tickets, Petitioner would not be able to prove that Roth violated § 3(b) .

Also according to Roth, Petitioner will not be able to prove that Roth violated § 23(b)(2) because Petitioner will not be able to prove: (a) that Roth received the tickets and (b) that Roth's receipt of the tickets was an unwarranted privilege. Finally according to Roth, Petitioner will not be able to prove that Roth violated § 23(b)(3) because: (a) Petitioner will not be able to prove that Roth received the tickets in 2004 and 2005 and (b) Roth turned in the tickets sent to him in 2006.

Petitioner's Arguments Against Summary Decision as to Riley and Riley & Co.

Petitioner asserts that there is a genuine issue of material fact as to why Riley and Riley & Co. gave Roth the Red Sox tickets where Roth denies the friendship that the former Respondents claim motivated the giving of the tickets. Petitioner argues that summary decision should be denied because Respondents have failed to demonstrate that Petitioner cannot prove the only essential element of its case that is in dispute, i.e., a "for or because of" link between the tickets given and Roth's official acts. Petitioner asserts that it will be able to prove this element of its case based on the compelling inference concerning why the tickets were given arising from the totality of the circumstances in which the tickets were given.

In attempting to demonstrate its ability to prove the "for or because of" element of § 3, Petitioner relies on the Court's statement in Scaccia that "the trier of fact can do no more than ascribe an intent [to influence or be influenced] on the basis of the circumstances surrounding" the gift, 431 Mass at 357 (quoting United States v. Schaffer, 188 F.3d 833, 843 (D. C. Cir. 1999)), and the Court's indication that factors which may prove a § 3 violation include the nature of the pending official action, its impact on the giver, the outcome of the public employee's act, the timing of the gift(s) and changes in the public employee's performance of his official acts. In addition, Petitioner relies on additional factors cited in the Commission's post- Scaccia Decision and Order in In the Matter of Life Insurance Association of Massachusetts, Inc., 2003 SEC __ (2003). More specifically, for the tickets given in 2004 and 2005, Petitioner argues that it is inferable from the totality of the following circumstances that the tickets were given to reward or influence Roth's inspection of Riley & Co.'s work: Roth and Riley were not friends, there was no reciprocity, the pair of tickets were worth $160, the tickets were given shortly before and/or after Roth's inspections, the tickets were probably a business expense, Roth had the power to pass or fail the work, and Roth was the only state employee given Red Sox tickets. For the tickets given in 2006, Petitioner argues that that those tickets were given to influence Roth in his March 2006 inspection of Riley & Co.'s work on the Sumner/Callahan Vent Building and that this is inferable from the totality of the circumstances which existed in 2004 and 2005 and from the following additional circumstances: there was a controversy concerning the design of the project, the tickets were offered close in time to Roth's official act (and during the same telephone conversation in which the giver was requesting the official action with knowledge that the design issues had not been addressed), and Roth's inspection could have resulted in additional costs of up to $168,000 for Riley & Co.

Petitioner's Arguments Against Summary Decision as to Roth

Petitioner asserts that there is a genuine issue of material fact as to why Roth received the Red Sox tickets from Riley and Riley & Co. where Roth denies the friendship that the former Respondents claim motivated the giving of the tickets. Petitioner argues that summary decision should be denied because Roth has failed to demonstrate that Petitioner cannot prove the only essential elements of its case that are in dispute, i.e., a "for or because of" link between the tickets received and Roth's official actions and whether Roth received tickets in 2004 and 2005. Petitioner asserts that it will be able to prove the first element of its case based on the compelling inference concerning why the tickets were received arising from the totality of the circumstances and the second element based on Riley's testimony and the affidavit of Riley & Co. employee Kilnapp. More specifically, Petitioner relies upon the same totality of the circumstances analysis as it employs with Riley and Riley & Co., to demonstrate its ability to prove the "for or because of" element of its claim that Roth violated § 3(b).

As to its § 23(b) allegations against Roth, Petitioner in effect asserts that the evidence proving Roth's receipt of the tickets from the other respondents while inspecting their work will establish that he acted in a manner which would cause a reasonable person with knowledge of the relevant circumstances to conclude that Riley and Riley & Co. could improperly influence or unduly enjoy his favor in the performance of his official duties or that he was likely to act or fail to act officially as a result of their undue influence in violation of § 23(b)(3). Petitioner further in effect asserts that the evidence proving Roth's receipt of the tickets from the other respondents for his being an inspector and as a reward for or to influence his inspections of their work will establish that he used his official position to obtain unwarranted privileges of substantial value in violation of § 23(b)(2).

Decision

The Alleged § 3 Violations

We find that, even taken in the light most favorable to Petitioner, there is no genuine issue concerning the material facts relating to Riley and Riley & Co.'s provision of tickets to Roth in 2004 and 2005. While there is a factual dispute concerning whether Roth, contrary to his denials, received tickets in those years as Petitioner alleges and Riley and Kilnapp testify occurred, there is, in any case, no evidence that in those years the gift of the tickets was linked to any particular official act or acts by Roth. Instead, the evidence favorable to Petitioner indicates that the tickets in 2004 and 2005 were a seasonal goodwill gift by Riley and Riley & Co. Accordingly, as required by Scaccia, we conclude that all three Respondents are entitled to summary decision in their favor on the alleged 2004 and 2005 § 3 violations.

The 2006 gift of tickets presented the most supportive set of circumstances for Petitioner's allegations that the respondents violated § 3. The evidence favorable to Petitioner shows the following. The tickets were offered during the course of a conversation in which Riley and Riley & Co., through Kilnapp, were requesting Roth to perform the official action of performing an inspection/walk-through of the company's work at the Sumner/Callahan vent building. This was action that the company had been seeking to have performed for some time and which was necessary to end the company's work on the project. (Roth also had the power to order testing of their plumbing work which would have cost Riley & Co. as much as $168,000.) Roth agreed to accept the tickets and to come to the job site in the same conversation and inspected (and failed) the work the next day. In addition, Roth apparently perceived the gift as improper, causing him to turn in the tickets.

Any suspicion that the 2006 gift was offered to induce Roth to perform the inspection/walk-through is, however, completely undercut by the evidence that the 2004 and 2005 gifts were offered to Roth as part of a seasonal practice and without any link to an official act. The undisputed evidence is that, to the extent he received ticket, Roth was one among a large and diverse group of persons who received Red Sox tickets from Riley & Co. each year at about the same time of year. We are therefore compelled by Scaccia, to conclude that all three respondents are entitled to summary decision in their favor as to the alleged 2006 § 3 violations.

Roth's Alleged § 23(b) Violations

We find that there are genuine issues of material fact concerning Petitioner's allegations that Roth violated §§ 23(b)(2) and 23(b)(3) by receiving Red Sox tickets from Riley and Riley & Co. in 2004, 2005 and 2006. Roth denies he received the tickets, except in 2006, but Riley and Kilnapp assert under oath that they sent Roth the tickets in all three years. Roth asserts that there is no proof that he actually received the tickets in 2004 and 2005, but Riley testified that Roth thanked him for the tickets. In any case, Petitioner does not necessarily have to prove that Roth in fact received the tickets, as his agreement to receive them, as testified to by Riley and Kilnapp, is a sufficient basis for the alleged violations. The evidence from Kilnapp and Riley concerning the distribution of the tickets in particular presents triable issues as to Roth. If Riley and Kilnapp are believed and Roth, should he testify, is not believed, the evidence would support the conclusion that Roth agreed to receive and received a pair of tickets in each of those years.

Thus, we conclude that Petitioner cannot be said to lack a reasonable expectation of proving that Roth agreed to accept and received Red Sox tickets from Riley and Riley & Co. in 2004, 2005 and 2006. While Roth turned in to Board Counsel the tickets he received in 2006, Petitioner could possibly argue that doing so only mitigated but did not avoid Roth's § 23 violation based upon his agreeing to accept the tickets during his telephone conversation with Kilnapp. Accordingly, we conclude that Roth is not entitled to summary decision in his favor as to these § 23 allegations. Petitioner has a triable case on these particular allegations against Roth.

Conclusion

For the above-stated reasons, we conclude that there is no triable issue of material fact as to whether the three respondents violated G. L. c. 268A, § 3 as alleged and that each is entitled to judgment in their favor as to the § 3 allegations as a matter of law. We conclude further that there is a triable issue of material fact as to whether Taylor Roth violated G. L. c. 268A, § 23(b)(2) and (3) as alleged and that he is not entitled to judgment in his favor as a matter of law as to the § 23(b) allegations.

Order

Accordingly, the joint motion for summary decision of Respondents Thomas E. Riley, Jr. and P.J. Riley & Company is GRANTED and all allegations against them (Adjudicatory Docket Nos. 08-0008 and 0009) are DISMISSED.

Accordingly also, Taylor Roth's motion for summary decision is GRANTED IN PART and DENIED IN PART: the allegations that he violated G. L. c. 268A, § 3 are DISMISSED and the allegations that he violated G. L. c. 268A, § 23(b) are NOT DISMISSED.

Finally, the matter concerning Taylor Roth (Adjudicatory Docket No. 08-0010) is hereby separated from this consolidated matter and shall proceed to an adjudicatory hearing on the dates previously scheduled for this consolidated matter, subject to rescheduling by and at the discretion of the Presiding Officer.


DATE AUTHORIZED: January 16, 2009
DATE ISSUED: January 23, 2009

//signed//
Matthew N. Kane

//signed//
Jeanne M. Kepthorne

//signed//
Patrick J. King




[1] Commission Chairman E. George Daher and Commissioner David L. Veator did not participate in this Decision and Order.

[2] Section 3(a), in relevant part, prohibits anyone from offering or giving anything of substantial value to a state employee "for of because of any official act performed or to be performed" by that employee.

[3] Section 23(b), in relevant part, prohibits a state employee from knowingly or with reason to know (2) using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals; and (3) acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence of 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 the undue influence of any party or person (rovided further that it shall be unreasonable to so conclude if the state employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion).

[4] Section (3), in relevant part, prohibits a state employee from seeking, accepting, receiving or agreeing to receive anything of substantial value for himself "for or because of any official act or act within his official responsibility performed or to be performed by him."