Docket No. 592

In the Matter of Michael J. Sweeney


Date: September 21, 1999


DISPOSITION AGREEMENT


The State Ethics Commission ("the Commission") and
Michael J. Sweeney ("Sweeney") enter into this Disposition
Agreement ("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.40).

On December 16,1998, 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
Sweeney. The Commission has concluded its inquiry and, on May
12,1999, found reasonable cause to believe that Sweeney violated
G.L. c. 268A.

The Commission and Sweeney now agree to the following
findings of fact and conclusions of law:

1. Sweeney is the fire chief for the town of Blackstone,
a position he has held for over seven years. As such, he is a
municipal employee as that term is defined in G.L. c. 268A, s.1.

2. In addition to his duties as fire chief, Sweeney is
also in charge of supervising the town's ambulance service. His
appointing authority is the town administrator.

3. Bert's Body Works, Inc. ("Bert's") is a Blackstone
business that specializes in repairing and refurbishing ambulances.
It is owned by Sweeney's sister Roberta and her husband Lucien
Rainville. Roberta is named as the corporate president and works
for Bert's on a part-time basis as bookkeeper. Lucien is primarily
responsible for the day-to-day operations of Bert's.

4. In spring 1996, the town of Blackstone decided to
refurbish its 1988 ambulance by remounting it on a new chassis and
installing new equipment. Town Meeting approved a transfer of
$60,000 from the ambulance

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services account to pay for the work. The cost of a new ambulance
would have been about $100,000.

5. Sweeney and the town administrator put together the
bid package to request proposals on refurbishing the ambulance. The
town administrator handled the legal and statutory requirements per
G.L. c. 30B, and Sweeney handled that part of the bid package
describing the vehicle and the scope of the work to be done. The
town issued the request for proposals in June or July 1996.

6. Bert's and one other bidder submitted bids for the
refurbishing work. On July 26,1996, the town administrator opened
the bids with Sweeney present. Bert's bid was for $58,086. The
other bid was for $58,469, did not include transportation costs to
and from the bidder's location in Georgia, and indicated the wrong
chassis model for the remount.

7. The town administrator, who was going on vacation
shortly after the bid opening date, left the bids with Sweeney to
review. According to Sweeney's review, both bids were in compliance
with the bid specifications, but Bert's bid was about $400 lower.

8. Sometime after the bid opening, Sweeney told Lucien
Rainville, his brother-in-law, that the town was awarding the
contract to Bert's. There was no formal confirmation from the town
administrator and no contract executed at that time, although
Sweeney subsequently issued a notice of award letter on Blackstone
Fire department stationery.

9. At some point in August 1996, Sweeney realized that
the bid specifications had not included On spot chains for the
vehicle,[1/] even though he had intended to include those items as
part of the refurbishing work. Sweeney discussed this matter with
Lucien Rainville, who suggested that the town could save $1,886 on
the contract by waiving the performance bond, and then use that
money to pay for the Onspot chains.[2/]

10. Sweeney then spoke with the town administrator, who
was concerned that Bert's provide a financial instrument to
guarantee the work. Eventually, the town administrator agreed to
waive the performance bond requirement if Bert's submitted a bank
check for $58,086.

11. Instead of a bank check, Sweeney received a regular
company check from Bert's for $58,086. Sweeney did not require
Bert's to provide a bank check as the town administrator had asked,
and he did not deposit or cash the check provided. Thereafter,
Bert's purchased and installed the Onspot chains for a total cost
of $1,886. Thus, the total cost of the refurbishing work
remained$58,086.

12. In late November or early December 1996, when Bert's
was about to deliver the refurbished ambulance, the town
administrator first learned that Sweeney and Lucien Rainville were
related by marriage.

13. Bert's delivered the refurbished ambulance in
mid-December 1996, and received payment from the town in the amount
of $58,086. The town received valid service for its money.

14. According to Sweeney's testimony taken under oath, he
knew that his brother-in-law owned Bert's and that his sister
Roberta worked for the company, but he did not know that Roberta
was a co-owner.

15. 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.[3/]

16. By participating in the award of the ambulance
remounting contract to Bert's, his brother-in-law's company,
Sweeney created an appearance that his involvement in awarding the
contract may have been based in part on his brother-in-law's having
a financial interest in the contract. In addition, by al lowing
Bert's to submit a regular company check in lieu of a performance
bond, Sweeney created an appearance that his allowing Bert's to do
so may have been based in part on his brother-in-law's having an
interest in this arrangement. Therefore, by his above-described
conduct, Sweeney acted in a manner which would cause a reasonable
person knowing all of the relevant facts to conclude that Bert's
and/or Rainville could unduly enjoy Sweeney's favor in the
performance of his official duties.[4/] Consequently, Sweeney
violated s.23(b)(3) on at least two occasions.[5/]

17. Sweeney cooperated fully in this investigation.

In view of the foregoing violations of G.L. c. 268A,
s.23(b)(3) by Sweeney, 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 Sweeney:

(1) that Sweeney pay to the Commission the sum of one
thousand dollars ($1,000) as a civil penalty for
violating G.L. c. 268A, s.23(b)(3); and

(2) that Sweeney waive all rights to contest the findings
of fact, conclusions of law and terms and condi-

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tions contained in this Agreement in this or any other
related administrative or judicial proceedings to which
the Commission is or may be a party.

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

[1/] Onspot chains are mounted to the underside of the vehicle
and install on tires automatically at the push of a button, for
better traction in snow.

[2/] In fact, Bert's had provided the town with an alternative
bid of $56,200 in its original proposal. indicating that the town
could save $1,886 on the contract by waiving the performance bond
requirement. Bert's usually provided this option in addition to its
standard bid.

[3/] Section 23(b)(3) further provides "It shall be
unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is public
in nature the facts which would otherwise lead to such a
conclusion." Sweeney, made no such disclosure.

[4/] As the Commission stated in In Re Keverian, 1990 SEC 460,
462, regarding situations where public officials have private
dealings with people that they regulate in their official
capacities, "And even if in fact no abuse occurs. the possibility
that the public official may have taken unfair advantage of the
situation can never be completely eliminated. Consequently, the
appearance of impropriety remains." Here, too, for the same reason.
the appearance of impropriety unavoidably arises when a fire chief
participated in awarding a contract affecting a family member, even
if in fact no actual abuse occurs.

[5/] G.L. c. 268A. s.19 prohibits a municipal employee from
participating as such in a particular matter in which to his
knowledge an immediate family member has a financial interest. As
a general rule, a municipal employee participating in the award of
a contract to a company owned in part by his sister would violate
s. 19. See, e.g., In re Studenski. Comm. Dkt. No. 211 (June 23.
1983). Here, Sweeney has asserted under oath that he did not know
that his sister was a co-owner of Bert's, and no evidence to the
contrary has been presented. See In re Manca, 1993 SEC 621.

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End of Decision