Public Enforcement Letter 89-8

James M. Boyle
c/o Francis Spina, Esq.
29 Wendell Avenue
Pittsfield, MA 01201

February 14, 1989

Dear Mr. Boyle:

As you know, the State Ethics Commission has

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conducted a preliminary inquiry regarding an allegation that as a
member of the Pittsfield School Committee, you traveled at the
expense of the ServiceMaster Company, a private custodial services
company, to Chicago to view. the ServiceMaster home offices and
laboratories, subsequent to which the City of Pittsfield entered
into a contract with ServiceMaster for school custodial services.
The results of our investigation (discussed below) indicate that
the conflict of interest law may have been violated in this case.
In view of certain mitigating circumstances (also discussed below),
the Commission, however, does not feel that further proceedings are
warranted. Rather, the Commission has determined that the public
interest would be better served by bringing to your attention the
facts revealed by our investigation and by explaining the
application of the law to such facts, trusting that this advice
will ensure your ffiture understanding of the law. By agreeing to
this public letter as a final resolution of this matter, the
Commission and you are agreeing that there will be no formal action
against you and that you have chosen not to exerise your right to
a hearing before the Commission.

I.The Facts

1. At all relevant times, you were a member of the Pittsfield
School Committee, and as such, a "municipal employee" as defined
in G.L. c. 268A, s.1(g). ServiceMaster is a private company, based
in Chicago, Illinois, which provides cleaning supplies and
custodial management services to its clients.

2. During the summer of 1986, ServiceMaster approached the City
of Pittsfield and proposed conducting a survey of the city's
buildings in order to assess maintenance problems and to propose
a custodial management plan. (Until that time, city custodial
personnel had handled all janitorial duties in city buildings.)
ServiceMaster's "sales pitch" in making their proposal centered on
the claim that their proposed local operations would have the
support and backup of the corporate offices in Illinois. Pursuant
to their claims, ServiceMaster repeatedly extended invitations to
city officials, in particular School Committee members, to visit
its corporate headquarters.

3. You expressed concerns about ServiceMaster's proposal from
the fist time that it was put before the School Committee. Because
you were so opposed and concerned about the proposal, you were
urged by other School Committee members to go to Chicago, and you
finally acquiesced.

4. On Monday, August 25, 1986, you and another member of the
School Committee were picked up at your homes by a ServiceMaster
representative. You went to the Albany airport where you were met
by a second representative from ServiceMaster. You boarded a 5:00
P.M. flight to Chicago, paid for by ServiceMaster at a cost of $550
for each round trip ticket. Upon your arrival in Chicago, you went
to dinner at LaFlamme Restaurant, which was paid for by
ServiceMaster in an amount totaling $140.60 (an average of $35.15
per person). You were then taken to the Sheraton Naperville where
you were provided with a room at ServiceMaster's expense, costing
$74.12.

5. The next morning, the four of you had breakfast at the hotel,
paid for by ServiceMaster in an amount of $21.08. You then drove
to ServiceMaster's corporate headquarters where you spent the day
touring the facilities and speaking with ServiceMaster personnel.
Lunch was served at the headquarters in a private dining room and
was followed by more tours of various ServiceMaster departments.
At approximately 4:15 P.M., you were taken to the airport where you
were told that your 4:45 P.M. flight had been canceled. The
ServiceMaster representatives then offered you dinner at the
airport restaurant, which ServiceMaster paid for in an amount
totaling $128.08 ($32.02 per person). At approximately 10 P.M.,
you succeeded in boarding a flight on standby, arriving at Albany
airport at approximately 12 A.M. You were then driven home by the
ServiceMaster representative.

6. You stated that you have since demanded a breakdown of
expenses incurred by ServiceMaster so that you might have
ServiceMaster reimbursed for your expenses. You have not yet
received an answer to your request.

7. In September, 1986, the City Council voted not to recommend
hiring ServiceMaster for city buildings (other than school
buildings). The School Committee, however, maintained an interest
in ServiceMaster's proposal.

8. In the fall of 1986, the Mayor appointed a committee to study
the issues of maintenance in the public schools. This committee
was to study the feasibility of having city personnel continue
handling custodial management of the school buildings, rather than
contracting the services out to a management company.

9. During the late fall of 1986 and early winter of 1987, the
School Committee considered three options for custodial management:
ServiceMaster's proposal, a proposal by the Crothall-American
Company, and local proposals. In February, 1987, the

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mayoral committee voted that, with minor modifications ad a
upgrading of equipment, the existing system of building maintenance
for the city schoois was sufficient. Despite this recommendation,
the Superintendent of Schools recommended that the School Committee
award ServiceMaster the contract.

10. On March 4, 1987, the School Committee, acting on the
Superintendent's recommendation, approved the ServiceMaster
proposal. You voted against approving the proposal. This is a
three-year agreement, contingent on annual renewal by the School
Committee, with a total cost of $1,496,222.00.

11. The trip to Chicago was a "no frills" trip. There were no
gifts or lavish entertainment. Thus, the only benefits enjoyed by
you consisted of the direct payments for your travel, lodging and
meals as described above.

12. The Commission finds no corrupt intent on your part in
connection with the above-described conduct.

13. The Commission knows of no evidence that you were aware that
these payments may have violated the law. In fact, there appears
to be a, widespread misconception among public employees that such
payments are permissible.

II.The Conflict Law

As a member of the Pittsfield School Committee, you are a
municipal employee for the purposes of the conflict of interest
law, G.L. c. 268A. Section 3(b) of G.L. c. 268A prohibits a
municipal employee, otherwise than as provided by law for the
discharge of his official duties, from requesting or accepting for
himself anything of substantial value for or because of official
acts performed or to be performed.

Your acceptance of ServiceMaster paying for your trip expenses
as described above raises serious concerns under s.3(b). As the
Commission said in EC-COI-88-5,

A selection committee's work on behalf of a procuring agency of
the commonwealth to evaluate prospective vendors would clearly
constitute the performance of a official act. Receipt of
anything "of substantial value"[1] for such travel would
generally constitute a violation of s.3(b) [citations omitted].
This subsidized travel is available to selection committee
members precisely for or because of their official acts
....[T]ravel expenses which are paid by the manufacturer would
be of substantial value in most, if not all, situations and
would violate s.3(b) of the statute [footnotes omitted].

The Commission also made clear in EC-COI-88-5 that it rejects the
contention that the value of the trip expenses in cases like this
accrues to the municipality and not to the individual traveler,
notwithstanding the fact that the School Committee urged you to go
on the trip. In the Commission's view the value is a benefit to
the individual traveler. (See, e.g., In the Matter of Carl D.
Pitaro, 1986 EC 271 (where the Commission held that the travel
privilege of substantial value accrued to Mayor Pitaro and not to
the City of Brockton).

There are good public policy reasons for prohibiting these kinds
of payments. As the Commission stated in EC-COI-82-99
(dealing with members of a state board of registration traveling to view
types of equipment proposed by a manufacturer for approval by the
board where travel expenses were to be paid by the manufacturer),

A system wherein the manufacturers of products pay for trips by
state employees is clearly open to abuse by the state employees
as well as the manufacturers. State employees could exploit
this system in order to procure unwarranted privileges. And, the
public impression that state employees were improperly
influenced in their decisions could arise. Manufacturers, on
the other hand, may view the quality of the accommodations ad
accouterments on these trips as more important than the quality
of their product.

We would note that G.L. c. 44, s.53 may provide a statutory
vehicle by which a private party may pay travel expenses for public
officials. This section of the municipal finance law would appear
to allow a city to accept grants or gifts of funds from a
charitable foundation, private corporation or a individual and, in
turn, the city may expend such funds for the specific purpose
intended with the approval of the mayor and the board of aldermen.
Chapter 44, s.53A also states that such funds shall be deposited
with the treasurer of such city ad held in a separate account. In
other words, if ServiceMaster desired to pay the travel expenses
of members of the School Committee to attend a fact-finding trip
to ServiceMaster's headquarters, ServiceMaster probably could do
so by providing the necessary amount to the city Treasurer stating
that the "gift" is to be used to pay such travel expenses.[2] This
mechanism provides for scrutiny by

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the city treasurer/auditor as to the reasonableness of the expenses
incurred by public employees. Presumably, the use of such a
mechanism would substantially reduce the potential for abuses
described in EC-COI-82-99. Although the School Committee asked you
to go to Chicago, more is required under the law. Public employees
must clearly distance themselves from valuable consideration which
flows from contractors or potential contractors.

III. Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient to
ensure your understanding of, and your future compliance with, the
conflict of interest law.[3] This matter is now closed. If you have
any questions, please contact me at 727-0060.

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[1] It has been held that $50 in cash is "of substantial value."
Commonwealth v. Famigletti, 4 Mass. App. 584(1976).

[2] The application of G.L. c. 44, s.53A to trips such as these is
ultimately a matter of municipal finance law. Before the School
Committee were to rely on this section, it probably should review
the issue with corporation counsel. (Alternatively, the city
presumably could reimburse an employee for trip expenses in the
normal course, then bill ServiceMaster for those costs. Again this
alternative should be reviewed with corporation counsel.)

[3] The Commission could have directed the staff to commence
adjudicatory proceedings in which, if you were found to have
violated s.3, fines of up to $2,000 for each violation could be
imposed. The Commission chose to resolve this matter with a public
enforcement letter because (1) there appears to be a widespread
misconception among public employees that such payments are
permissible; (2) there were no "frills" involved in these trips;
ad (3) the Commission knows of no evidence that you were aware that
these payments violated the law.