Appearances:

Candies Pruitt-Doncaster, Esq., Counsel for Petitioner
Stephen P. Colella, Esq. and Tyler Pentoliros, Esq., Counsel for Respondent

Commissioners:

Charles B. Swartwood, III, Jeanne M. Kempthorne, David L.Veator and
Patrick J. King

Presiding Officer:

Commissioner David L. Veator

DECISION AND ORDER

Procedural Background

This matter was commenced on January 12, 2009, with the issuance of an Order to Show Cause ("OTSC") alleging that Martin had violated G. L. c. 268A, §§ 23(b)(2) and (3) [1] between March 2005 and January 2007 by, while serving as a member and the chairman of the Town of Rowley ("Town" or "Rowley") Board of Water Commissioners, receiving free transportation from two employees of the Rowley Water Department ("Water Department"). Martin answered the OTSC on February 2, 2009, denying the allegations. Martin's subsequent motion for summary decision was denied and an adjudicatory hearing was held on August 11, 2009. The parties made their closing arguments at the August 11 th hearing before Commissioner Veator and thereafter submitted final memoranda.

In rendering this Decision and Order, each undersigned member of the Commission has considered only the testimony, the evidence in the public record, including the hearing transcript, and the arguments of the parties.

Allegations and Defenses

The OTSC alleges that Martin, who had lost his driver's license for driving under the influence, violated G. L. c. 268A, § 23(b)(2) by, at least once a week between March 2005 and January 2007, arranging to have the Water Department Superintendent ("Superintendent") and, on two occasions when the Superintendent was on vacation, another employee, drive a him in a Town truck from his place of private employment in Newburyport to the Water Department in Rowley to sign the department payroll and bills, and then to his home. Allegedly, further, on one of those occasions, Martin had the employee drive him from his private employment to a drug testing facility and then to the Water Department. The OTSC also alleges that Martin violated § 23(b)(3) by signing the Water Department payroll and by supervising the Superintendent and the employee after they had provided him with the afore-described transportation. In its brief, Petitioner characterizes Martin's conduct as using his Water Department subordinates as his private chauffeurs and argues that Martin received free transportation worth over $1,000.

While his Answer denied all of the allegations, Respondent through his hearing testimony and his brief has effectively conceded that he received virtually all of the free transportation as alleged. Respondent argues, however, that nearly all of the free transportation he received did not violate the conflict of interest law because it was solely to get him to Rowley to conduct his official business as a Water Commissioner of signing Water Department payrolls and bills, and that the couple of side trips he made did not violate the law because they were not of substantial value. In addition, Respondent argues that his conduct did not create an appearance of conflict of interest.

The Facts

Martin is a Rowley resident and has been one of the three members of the Rowley Board of Water Commissioners ("Board") since his election in 2000. There is no evidence that Water Commissioners are paid. The Board is the governing body of the Water Department and meets about twice monthly.

In 2004, Martin lost his driver's license for six years for operating under the influence. As a condition of his probation, Martin was required to submit to periodic urinalysis.

Between March 2005 and January 2007, Martin was privately employed at Arwood Machinery ("Arwood") in Newburyport. Martin commuted to work by arranging rides with others, including Arwood coworkers. Martin regularly worked at Arwood until 3:30 p.m. daily.

John Rezza ("Rezza"), as Superintendent, is a salaried full-time Town employee and the day-to-day administrator of the Water Department. Gary Dini ("Dini"), as the Water Department's Primary Operator from fall 2005 to spring 2007, was an hourly paid full-time Town employee responsible for field operations and subordinate to the Superintendent. In 2006, Dini was paid at an hourly rate of $19.64. Water Department employees regularly work 7:30 a.m. to 3:30 p.m. daily.

Martin did not have any personal relationship or friendship with Rezza or Dini.

As Superintendent, Rezza had the use of a Town truck for Town business and, because he was on call for emergencies 24/7, for his daily commute between his home and work. During the relevant time period, Rowley did not have any policy governing the use of Town vehicles. Rezza understood, however, that the Town truck was not for personal use.

Water Department bills payable and employee payrolls require the signatures of at least two of the three Water Commissioners for processing. The bills payable and payrolls were signed by the Water Commissioners and processed at Town Hall on alternating weeks.

Rezza had a practice of calling Martin when he needed to have bills payable or employee payrolls signed. According to Rezza, he called Martin because he was generally more available than the other Water Commissioners and more flexible in his work schedule. A few times, Martin called Rezza for a ride to the Water Department. Sometimes Martin would get to the Water Department by getting a ride with one of the persons with whom he regularly rode to and from work. Mostly, Rezza went to Martin's place of private employment at Arwood in Newburyport and brought him back to the Water Department to sign the bills or payroll. These trips were timed so that Martin was picked up at about 3:30 p.m. when his Arwood work day ended. Rezza did not feel pressured or intimidated by Martin. Rezza often dropped Martin off at Martin's home which was on Rezza's way home from work. Rezza also twice took Martin to cash his check.

When Rezza was on vacation, Martin, as Board chairman, took over his duties as Superintendent. In February 2006, while Rezza was on vacation, Martin, as acting Superintendent, called Dini and asked him to pick him up at Arwood and bring him to the Water Department to sign the payroll. Martin did this three times.

The first time Dini gave Martin a ride at his request, Martin had Dini remove the magnetized Town logo from the truck, stating that words to the effect of "people don't need to know our business," and directed Dini to drive to the Salisbury Office of Community Corrections ("SOCC") drug testing facility in Salisbury. Once at the SOCC, Dini waited outside for Martin for five minutes, and then drove him to the Water Department. In total, Dini was away from the Water Department for between 45 minutes to one hour. The second time Martin called, Dini simply picked Martin up at Arwood and brought him to the Water Department within about half an hour. The third and final time Martin called, Martin asked Dini to drive him to his bank to cash a check before they returned to the Water Department. This third trip took Dini about 45 minutes.

Between March 2005 and January 2007, Martin signed the Water Department's bills payable 76 times. During the same period, Martin signed the Water Department payroll 53 times.

A taxi ride from Arwood to the Water Department would have cost $11 in 2005 and $13 in 2006-2007. A taxi ride from Arwood to the SOCC drug testing facility in 2006 would have cost $8. A taxi ride from the SOCC to the Water Department in 2006 would have cost $20.

Discussion

The Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(9)(m). Thus, to prove its allegation that Martin violated § 23(b)(2), Petitioner was required to establish by a preponderance of the evidence that Martin was a municipal employee who, knowingly or with reason to know, used or attempted to use his official position to secure for himself unwarranted privileges or exemptions of substantial value which were not properly available to similarly situated individuals. To prove its allegation that Martin violated § 23(b)(3), Petitioner was required to establish by a preponderance of the evidence that Martin was a municipal employee who, knowingly or with reason to know, acted in a manner which would cause a reasonable person with knowledge of the relevant circumstances to conclude that Rezza and/or Dini could unduly enjoy his official favor or that he was likely to act or fail to act as a result of their undue influence.

As to both alleged violations, there is no dispute and the preponderance of the evidence clearly establishes that Martin was an elected Board member, at all relevant times, and, therefore, a Rowley municipal employee within the meaning of G. L .c. 268A.

Section 23(b)(2)

The evidence in the record establishes that Martin knowingly, or with reason to know used or attempted to use his official position as a Water Commissioner by seeking, accepting or receiving free transportation from Rezza and Dini. It is clear by a preponderance of the evidence that under the circumstances, Martin knew that he was receiving free transportation from Rezza and Dini because he was a Water Commissioner. Simply put, as far as the evidence shows the only reason either Rezza or Dini had to pick Martin up at Arwood and to drive him to the Department or anywhere else was that Martin was a Water Commissioner. There is no evidence of any personal friendship between Martin and Rezza or Dini which might have motivated them to help Martin for reasons unrelated to his official position. This element is particularly evident with regard to Martin's three calls to Dini while Rezza was on vacation and Martin was acting Superintendent. If Martin did not actively know that he was using his official position to obtain free transportation, it is beyond dispute that he had reason to know he was doing so.

Thus, the evidence shows that Martin, knowingly or with reason to know, repeatedly both actively and passively used his official position as a Water Commissioner to secure free transportation from subordinate Water Department employees.

Petitioner argues that all of the transportation Martin received was unwarranted not only because it was not authorized by Town policy or by the Board of Selectmen, but because the rides served Martin's personal purposes at Town expense. Petitioner alleges that Martin used town employees as his private chauffeurs to a degree that was "excessive and unauthorized." Respondent counters by asserting that the transportation he received was not for his benefit but for the Town's benefit and that he had no obligation to travel to the Department or need for transportation provided by Department employees. Respondent argues that instead of being chauffeured by Department employees for his private purposes and benefit he was like a needed pump which was transported to the Department to keep it functioning for the public benefit.

A privilege or exemption is unwarranted when it is not authorized by law or regulation or is not otherwise justified. In general, the unauthorized use of public resources for a private purpose is an unwarranted privilege. Based on the evidence, some of the transportation received by Martin, specifically his side trips to the SOCC and to his bank, was plainly unwarranted. The clearest example of unwarranted transportation was Martin's having Dini drive him to the SOCC drug-testing facility in Salisbury. Crediting Dini's testimony, the impropriety of this was apparently clear even to Martin who had the Town logos removed from the truck. Less obviously improper, but still plainly inappropriate, were Martin's two requests to Rezza and single request to Dini to drive him to the bank to cash his check. Each of these side trips obviously involved the use of Town vehicles and the time of town employees for travel solely for Martin's personal benefit. Accordingly, while noting that the evidence shows that these clearly inappropriate side trips all occurred in connection with Martin being transported to the Water Department to sign payrolls and/or bills payable, we nevertheless conclude that the free transportation to the SOCC and to Martin's bank was an unwarranted privilege which was not properly available to Martin as a Water Commissioner.

By contrast, the evidence in the record of the allegedly unwarranted nature of the majority of the free transportation received by Martin as a Water Commissioner, i.e., the at least weekly rides from Arwood to the Water Department to sign payrolls and bills payable and then to Martin's home, is divided. On the one hand, like all of the free transportation, this travel was not authorized by Town by-law or regulation, as the Town had none relating to the use of Town vehicles. Nor had the Board of Selectmen approved the provision of free transportation to Martin. On the other hand, the use of Town resources to transport Martin to the Water Department was, in contrast to the above- discussed side trips, not without a public purpose.

The evidence indicates that the Water Department benefited from Martin's being transported there in order to sign payrolls and bills payable. Martin was apparently unpaid as a Water Commissioner and could have declined to make these trips. There is no evidence that Martin had anything to lose by not making the trips. Martin apparently had separate means of transportation between his home and Arwood on the days he did not go to the Water Department and there is no evidence that he would have been without transportation home, or he would have incurred any cost or expense, if he had not received rides from Rezza or Dini. Martin was not under any obligation to hire a cab to get to the Water Department to sign the payrolls and bills payable. Rezza apparently decided that it was less trouble to pick up Martin at Arwood than to obtain the signature of another Water Commissioner. Apart from the side trips to the SOCC and his bank, Martin could reasonably have thought that it was not unwarranted for him to be provided with transportation in a Town vehicle to the Water Department to perform his official functions as a Water Commissioner, particularly where he served without compensation.

Based on the evidence in the record, we find that, as to the above-described majority of the free transportation received by Martin, Petitioner has not met its burden of proving by a preponderance of the evidence that the free transportation Martin received was an unwarranted privilege. Thus, in contrast to the side trips, Petitioner did not establish by a preponderance of the evidence that the transportation of Martin from Arwood to the Water Department to sign bills payable and the payroll was the unjustified use of public resources for Martin's private purposes. Instead, the evidence is at least equally supportive of the conclusion that the transportation provided to Martin, excluding the side trips, was the use of public resources, albeit not properly authorized by the Board of Selectman or Town policy, primarily for the public purposes of the Water Department. That Martin was driven home after signing the Water Department documents does not change what the evidence shows was more likely than not the primary reason why he was transported by Rezza and Dini from Arwood to the Water Department. Therefore, we find that Petitioner has failed to establish by a preponderance of the evidence that the weekly free transportation received by Martin, excluding the side trips, was an unwarranted privilege that was not properly available to him as a Water Commissioner.

Finally, in order to establish that Martin violated § 23(b)(2) by using his Water Commissioner position to secure the unwarranted privilege of free transportation for his private purposes, securing free transportation, Petitioner was required to prove that the free transportation was of substantial value. Anything worth $50 or more is of "substantial value" for G. L. c. 268A purposes. [2]

Because we have found that Petitioner only proved that Martin's side trips to the SOCC drug testing facility and to his bank were an unwarranted privilege and failed to prove that the other free transportation he received was unwarranted, we need only consider the evidence of the value of the side trip travel.

There is no evidence in the record of the value of the two trips to the bank that Rezza provided to Martin, let alone that they were of substantial value. As to the Dini-provided side trips, there is again no evidence of the value of the bank side trip except that the trip took about fifteen minutes longer than the trip without any side trips. As to the side trip to the drug-testing facility, the only evidence of value is testimony concerning the cost of travel by taxi. This evidence indicates that, if the travel had been done by taxi, the side trip to the SOCC would have added $15 to the cost of simply traveling from Arwood to the Department (a $13 taxi ride). [3] Thus, even with the value of Dini's work-time used in traveling to the SOCC added in, the side trip had a value of under $50. [4] Thus, the evidence does not establish that the side trips were of substantial value either individually or collectively. [5]

Accordingly, we find that Petitioner has not proved by a preponderance of the evidence that the unwarranted privilege that Martin secured through his Water Commissioner position of free transportation to the SOCC and his bank was of substantial value. Therefore, we find that Petitioner has not proved that Martin's clearly improper conduct in securing that free side trip transportation, violated § 23(b)(2) as alleged.

Section 23(b)(3)

Petitioner argues that Martin violated § 23(b)(3) by supervising Rezza and Dini and signing the Department payrolls, including payments to them, after receiving free transportation from them, and did not avoid these violations by publicly disclosing those circumstances. Petitioner offered no evidence that Martin did anything but sign the payrolls prepared by Rezza; no evidence of any irregularities in the payrolls Martin signed and no evidence of any specific supervisory actions concerning Rezza or Dini performed by Martin. There is no evidence in the record of any over-time or other extra payments to Rezza or Dini in connection with their transporting Martin. The evidence shows that the Water Department payrolls and bills payable were each reviewed and signed by at least one other Water Commissioner before being processed. Respondent argues that Martin's being transported by Rezza in a Town truck to the Water Department weekly to sign documents as a Water Commissioner would not create an appearance of impropriety but instead would appear "completely appropriate."

While we reject Respondent's argument that no appearance of impropriety was created by his actions, we conclude that, in the absence of evidence in the record of any official acts taken by Martin relating to Rezza and/or Dini apart from the routine signing of the payroll, and, further, in the absence of evidence of any irregularities in those approvals, let alone any actions favoring Rezza or Dini, Petitioner has not established by a preponderance of the evidence that a reasonable person, with knowledge of the relevant circumstances of this case as shown by the evidence in the record, would be caused to conclude that Rezza and/or Dini could unduly influence Martin or unduly enjoy his favor in the performance of his duties as a Water Commissioner or that he was likely to act or fail to act as a Water Commissioner as a result of Rezza's and/or Dini's undue influence upon him. Accordingly, we find that Petitioner has not proved that Martin violated § 23(b)(3), as alleged.

Conclusion


For the above stated reasons, we conclude that Petitioner has not proved by a preponderance of the evidence that Martin violated G. L. c. 268A, §§ 23(b)(2) and 23(b)(3), as alleged. Accordingly, we conclude these proceedings by finding for Respondent.

DATE AUTHORIZED: November 20, 2009
DATE ISSUED: November 24, 2009

SIGNED:

Charles B. Swartwood, III /s/_______
Charles B. Swartwood, III, Chairman

Jeanne M. Kempthorne /s/_________
Jeanne M. Kempthorne

David L. Veator /s/_______________
David L. Veator

Patrick J. King /s/________________
Patrick J. King



[1] 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 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 the undue influence of any party or person (provided 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).

[2] Life Insurance Association of Massachusetts, Inc. v. State Ethics Commission, 431 Mass. 1002, 1003 (2000).


[3] According to the testimony, the cost in 2006 of a cab ride directly from Arwood to the Water Department was $13, from Arwood to the SOCC was $8, and from the SOCC was $20. Thus, the added cost of traveling from Arwood to the Water Department via the SOCC over doing so directly was $8 plus $20 minus $13, or $15.

[4] According to Dini, a direct trip from the Water Department to Arwood and back took a half hour and the round trip which included the SOCC side trip took 45 minutes to an hour. The SOCC side trip thus consumed 15 to 30 additional minutes of Dini's time. At his hourly rate, that added time was worth between approximately $5 and $10. Thus, including the value of Dini's time, the SOCC side trip had a value of about $20 to $25.

[5] Based on Dini's testimony that the trip to pick up Martin that included the bank side trip was about fifteen minutes longer than the one trip between the Water Department and Arwood without side trips, we calculate $5 to be the added cost in Dini's time for the bank side trip. There no evidence in the record of the cost of this side trip in terms of miles traveled. Thus, as far as the evidence shows, the total added value or cost attributable to the SOCC and bank side trips was between $25 and $30.