Public Enforcement Letter 89-7

Angel Ramirez
c/o Michael McCarthy, Esq.
70 Allen Street
Pittsfield, MA 01201

February 14, 1989

Dear Mr. Ramirez:

As you know, the State Ethics Commission has 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 future 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 exercise 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
maintenance 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

Page 397
Committee members, to visit its corporate headquarters.

3. You agreed to go on the trip because it was the best way to
determine whether ServiceMaster's sales pitch was credible.

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 were then
driven 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. 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.

7. 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.

8. 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 mayoral
committee voted that, with minor modifications and an upgrading of
equipment, the existing system of building custodial maintenance
for the city schools was sufficient. In February, 1987, however,
the Stiperintendent of Schools recommended that the School
Committee award ServiceMaster the contract.

9. On March 4,1987, the school committee, acting on the
Superintendent's recommendation, approved the ServiceMaster
proposal. You voted for such approval. This is a three-year
agreement, contingent on annual renewal by the School Committee,
with a total cost of $1,496,222.00 (which includes the payroll for
all school department custodial employees).

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

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

12. 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 were a
municipal employee for the purposes of the conflict of interest
law, G.L. c. 268A. Section 3(b) of G.L. c. 266A 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, (issued on February 3, 1988),

A selection committee's work on behalf of a procuring agency of
the commonwealth to evaluate prospective vendors would clearly
constitute the performance of an official act. Receipt of
anything "of substantial value"[1] for

Page 398

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.
In the Commission's view the value is a benefit to the individual
traveler. See, 1986 EC 271.

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
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 arrse.
Manufacturers, on the other hand, may view the quality of the
accommodations and accouterments oh 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 an individual and,
in turn, the uty 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 and 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. Thrs
mechanism provides for scrutiny by 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.

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 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. Famlgletti, 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 Service Master 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;
and (3) the Commission knows of no evidence that you were aware
that these payments violated the law.