Decision and Order
Candies Pruitt-Doncaster, Esq.
Counsel for Petitioner Enforcement Division
Joseph W. Monahan, III, Esq.
Thomas J. Freda, Esq.
Counsel for Respondent Taylor Roth
Charles B. Swartwood, III, Matthew N. Kane, Jeanne M. Kempthorne and Patrick J. King 
Presiding Officer: Commissioner Jeanne M. Kempthorne
This matter was commenced on April 23, 2008, with the issuance of an Order to Show Cause alleging that Roth had violated G. L. c. 268A, sections 3(b) and 23(b)(2) and (3) in 2004, 2005 and 2006 by receiving Red Sox tickets from Thomas E. Riley, Jr. ("Riley") and P.J. Riley & Company ("Riley & Co.") while employed as a senior inspector for the state Board of Examiners of Plumbers and Gasfitters ("Board") and inspecting gas and plumbing work performed by Riley & Co. as a state contractor. In September 2008, the Commission ordered this matter consolidated with related matters concerning Riley and Riley & Co. In October 2008, all three respondents filed motions for summary decision. On January 23, 2009, the Commission issued a Decision and Order dismissing the s. 3 allegations against all respondents and separating the matter concerning Roth's alleged violations of s. 23, which proceeded to an adjudicatory hearing on February 4, 2009.
Allegations and Defenses
Petitioner alleges that in each of the years 2004, 2005 and 2006 Roth received a pair of Red Sox tickets from Riley and Riley & Company because of his senior inspector position and continued to inspect the company's work in violation of G. L. c. 268A, sections 23(b)(2) and 23(b)(3).  Roth denies that he received any tickets in 2004 and 2005 and argues that because he turned the tickets he unexpectedly received in 2006 in to Legal Counsel for the Board ("Board Counsel") he could not have violated the law.
As a senior inspector for the Board, Roth inspects plumbing and gas pipefitting work performed on buildings owned by the Commonwealth for compliance with state plumbing and gas pipefitting codes. Roth is empowered to pass or fail a project for compliance or non-compliance with the codes. Upon his finding "leaks, defective or patched material, or evidence of unskilled or inferior workmanship," 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 about twenty inspections of Riley & Co.'s work at seven sites in Boston, Weymouth and Norfolk. 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 total of 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.
In June 2004, Roth, Riley and Kilnapp were grouped together in a plumbing industry golf tournament at the Pembroke Country Club. Roth was a friendly business acquaintance of Riley and Kilnapp, but they were not friends and Roth did not socialize with them apart from at plumbing industry events.
In March 2006, Roth spoke by telephone with Kilnapp concerning 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. During that telephone conversation, Kilnapp asked Roth if he still lived in Braintree. Subsequently, Roth performed a walk-through inspection of Riley & Co.'s work at the MTA Sumner/Callahan Vent Buildings and confirmed that it did not comply with the plumbing code. Subsequently also, Roth received in the mail a pair of Red Sox tickets sent to him by Kilnapp at Riley's direction. The face value of each ticket was $80. After receiving the tickets and consulting with his wife and his father, Roth turned the tickets over unused to Board Counsel on April 6, 2006.
Riley and Kilnapp testified that, in or about March of each of the years 2004, 2005 and 2006, Riley & Co., through Riley and Kilnapp, offered by telephone and sent by mail to Roth a pair of Red Sox tickets for a single game. On each occasion, Roth agreed to accept the tickets. At the golf tournament in 2004, Roth thanked Riley for the tickets he received that year. Before mailing out to Roth the pair of Red Sox tickets in 2006, Kilnapp, at Riley's direction, offered the tickets to Roth and Roth agreed to accept them during their telephone conversation about Riley & Co.'s work at the MTA Sumner/Callahan Vent Buildings. In his testimony, Roth denied that these events occurred.
The resolution of this case depends on our assessment of Roth's, Riley's and Kilnapp's credibility. Petitioner's case against Roth rests entirely on the credibility of Riley's and Kilnapp's testimony. Apart from Riley's and Kilnapp's testimony, there is no evidence in the record of their alleged gifts of Red Sox tickets to Roth. There are no corroborating witnesses or documents supporting Riley and Kilnapp. Conversely, Roth's defense depends on the credibility of his testimony denying that he was ever offered or agreed to accept Red Sox tickets from Riley or Kilnapp and only received tickets from Riley & Co. in 2006 which he had not been offered or agreed to accept and which he turned in to Board Counsel.
Petitioner argues that Kilnapp and Riley were credible because they were individually consistent and detailed in their testimony, corroborated each other and were not impeached, and that Roth should not be believed because of his self-interest in denying his acceptance of tickets. Respondent counters that Riley and Kilnapp are not credible because their testimony was motivated by the need to create a "seasonal practice" defense and cannot be verified by documentary evidence, and that he should be believed because his conduct was consistent with "what you would expect of an honest state inspector who has received an unsolicited gratuity," that is, he turned in the tickets to Board Counsel.
We credit Roth's testimony on the basis of his demeanor, and the lack of documentary or other independent corroboration for Kilnapp's and Riley's testimony. It is difficult to envision a friendship between Roth and Riley and Kilnapp, and it seems most unlikely that such a friendship, if it existed at all, would have taken root as early as February or March 2004, when the tickets were distributed and months before the June 2004 golf tournament. It is also hard to imagine that Roth took the tickets in 2004 and 2005 without a qualm and then suddenly panicked in 2006 when he returned the tickets in to Board Counsel. We find that Roth did not receive tickets in 2004 or 2005.
Riley's and Kilnapp's professed certain memory of giving tickets to Roth in 2004 and 2005 is not credible. We do not find that they intentionally misrepresented the facts, but it does appear that they have reinforced each other's "memory" of events that substantiate their story of a "seasonal practice" which was clearly in their interest to establish. The lack of documentation or other evidence to support their testimony and the weakness of their memory of related events further support our finding.
Based on our assessment of the credibility of the witnesses, we conclude that Petitioner has not proved by a preponderance of the evidence that Roth violated G. L. c. 268A, sections 23(b)(2) and 23(b)(3), as alleged. Accordingly, we conclude these proceedings by finding for Respondent.
DATE AUTHORIZED: April 17, 2009
DATE ISSUED: April 28, 2009
 Commissioner David L. Veator did not participate in this Final Decision.
 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 (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).