Decision  Final Decision and Order on Petitioner's Motion for Summary Decision in the Matter of David Vigeant

Date:	04/08/2026
Organization:	State Ethics Commission
Docket Number:	25-0005
Location:	Boston
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 248, Acts of 2024 G.L. c. 268B, the Financial Disclosure Law, as Amended by c. 248, Acts of 2024

I. Introduction and Procedural History

In an Amended Order to Show Cause filed on September 19, 2025 (“Amended OTSC”), Petitioner alleges that Respondent David Vigeant (“Respondent”), the Superintendent of the Town of Townsend (“Town”) Water Department, violated G.L. c. 268A, § 23(b)(2)(ii) when he sent plan drawings for a Town construction project to a prospective bidder prior to the project being publicly available for bidding. 

On September 29, 2025, Petitioner filed a Motion for Summary Decision (“Motion”). On October 15, 2025, Respondent, acting pro se, filed a response to the Motion.  Respondent subsequently retained counsel, who filed a further response to the Motion on January 13, 2026.  Oral argument on the Motion was held before the Presiding Officer on January 16, 2026.  The parties subsequently filed post-hearing submissions.  On January 30, 2026, the Presiding Officer referred the Motion to the full Commission.  The full Commission heard argument on the Motion on February 26, 2026.1

II. Standard Regarding a Motion for Summary Decision

A motion for summary decision is the administrative equivalent of a motion for summary judgment.  McGovern v. State Ethics Comm’n, 96 Mass. App. Ct. 221, 225 n. 9 (2019); 930 CMR 1.01(6)(e) (Commission may grant summary decision if it determines that the undisputed facts, “supported by citations to pleadings, affidavits, discovery responses, or other evidentiary materials,” entitles a moving party to summary decision).  Summary decision allows an administrative agency to dispense with an adjudicatory hearing “when the papers or pleadings filed conclusively show on their face that the hearing can serve no useful purpose….”  Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210, 228 (2013) (citation omitted).

In an administrative proceeding, a motion for summary decision may be granted where “there is no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”  D’Errico v. Board of Registration of Real Estate Brokers and Salespersons, 99 Mass. App. Ct. 1123 (2021) (Memorandum and Order pursuant to Rule 23.0) (quoting 801 CMR § 1.01(7)(h)).  As “principles applicable to summary judgment decisions” govern in administrative proceedings, Martignetti Grocery Co. v. Alcoholic Beverages Control Comm’n, 96 Mass. App. Ct. 729, 730 n. 4 (2019), the Commission must view all evidence in the light most favorable to Respondent as the non-moving party.  Williams v. Hartman, 413 Mass. 398, 401 (1992). 

III. Facts in the Light Most Favorable to Respondent

We find that there is no genuine issue as to the material facts in this case, which are as follows. 

1. Since November 2020, and at all relevant times, Respondent was the Superintendent of the Town Water Department (“Water Department”). 
2. In 2021, the Water Department decided to construct a new water treatment plant and water main extension after perfluoroalkyl and polyfluoroalkyl substance levels in the Town’s largest source of drinking water were found to exceed maximum allowable contaminant levels.   
3. The water main extension bid requirements included (1) construction of a several thousand foot long “raw water” transmission main to the site of a future water treatment plant; (2) construction of a finished 12-inch water main; and (3) a “Bid Alternate” for construction of a looping water main (“Water Main Project”). 
4. The Water Department hired Tighe & Bond, a private engineering company, to provide plan drawings and specifications, among other services, to enable the Water Department to put the Water Main Project out to bid. 
5. At all relevant times, Gary Shepherd (“Shepherd”) was the Town Fire Chief.  Shepherd also owned and operated several businesses in the Town, including serving as president, treasurer, secretary, and director of Shepco, Inc. (“Shepco”) and Overall Directional Drilling, Inc. (“Overall”). Shepco and Overall both have a principal office located at 55 Main Street in the Town. 
6. Overall is a company whose primary business is horizontal directional drilling. 
7. Horizontal directional drilling is an alternative to trenching, installing conduit and backfilling; it is “a trenchless technology that uses surface-launched equipment to drill underground horizontally and install pipes, conduits, and cables.”
8. On or about October 13, 2022, Tigue & Bond provided Respondent with plan drawings for the Water Main Project labeled “October 2022” on the cover page. 
9. On October 14, 2022, Tigue & Bond estimated that the Water Main Project would cost approximately $5,000,000. 
10. On October 28, 2022, the Town Conservation Agent sent an email to Respondent and others asking whether the Water Department had a plan to address damages to, or the discovery of damages to, culverts as a result of traditional trenching for the Water Main Project.  Respondent responded to the Town Conservation Agent the same day stating “There are no plans to fix any pre-existing damage [sic] we will fix or replace anything we damage…”
11. On November 14, 2022, Tigue & Bond Project Engineer Mary Danielson (“Danielson”) sent an email to Respondent about using horizontal directional drilling for all culvert crossings in the Water Main Project because, among other concerns, the culverts were clustered “making it difficult to trench over some and drill under others.” Danielson ended the email with “We will provide updated water main plans with the HDD [Horizontal Directional Drilling] shown shortly.”
12. Respondent responded to Danielson’s November 14, 2022 email, “Hi Mary, the contractor can directional drill under multiple culverts and [sic] one sitting if you show me the cluster I can look at it.” 
13. Overall has 1 of the 3 machines in New England that could directional drill a 12-inch water main.
14. On January 27, 2023, Danielson sent an email to Respondent and attached plan drawings for the Water Main Project labeled “February 2023” on the cover page.  In the email, Danielson wrote: “Please see the draft set of drawings for the raw water and looping water main.  We’re still going through final QC on our end but I think we’ve incorporated most of the changes to date including sample box at the end of the raw water main, the tapping sleeve & valve for the new finished water main, HDD [Horizontal Directional Drilling] culvert crossings, and full width pavement on Ash Street and Harbor Trace Road.  Please let us know if you have additional edits to these drawings prior to bidding.”
15. Within minutes of receiving Danielson’s January 27, 2023 email with the February 2023 plan drawings, Respondent forwarded that email to the Shepco email accounts for Shepherd and his son, a Project Manager, with a note, “Here is [sic] the updated water lines that will be going out to bid in 3 weeks.”  Respondent did not forward the plan drawings for the Water Main Project to any other prospective bidder. 
16. On February 2, 2023, Respondent forwarded the January 27, 2023 email he sent to Shepherd and his son to an Overall employee.  The email described the attached February 2023 plan drawings as “Final waterline plans” and contained the following “Important Dates:” “building bid posting 16 Feb 2023,” “Waterline bid posting 23 Feb 2023,” “Waterline bid opening 30 March 2023,” Building bid opening 7 April 2023,” “Town Meeting Alt funding 2 May 2023,” “Bid award 3-5 May 2023,” and “June-July construction.”  Respondent did not forward the plan drawings for the Water Main Project to any other prospective bidder.   
17. The February 2023 plan drawings showed the locations where all the horizontal directional drilling would occur, which were not shown on the October 2022 plan drawings for the Water Main Project. 
18. In late February 2023, Respondent placed an ad in the Groton Herald announcing that the Water Main Project was available for bid.  An announcement was also placed on the Commonwealth of Massachusetts Central Register (“Central Register”). 
19. The Groton Herald and Central Register announcements stated that bid documents were available through Tigue & Bond. 
20. The Groton Herald ad and announcement stated that the Water Main Project was subject to G.L. c. 30, § 39M. 
21. The Water Main Project was available for bid from March 1, 2023, through March 30, 2023. 
22. The Water Department received Shepherd’s signed bid of $4,756,421.71 on behalf of Shepco for the Water Main Project on March 30, 2023.
23. The Water Department received four bids total on the Water Main Project, which were opened on March 30, 2023.
24. Shepco’s bid was $591,814.39 less than the next highest bid. 
25. On May 3, 2023, the Town, through the Water Department, awarded the Water Main Project contract to Shepco for $4,756,421.71. 
26. Shepherd signed the Water Main Project contract on behalf of Shepco on May 24, 2023. 

IV. The Section 23(b)(2)(ii) Violations

Section 23(b)(2)(ii) of G.L. c. 268A is violated if a municipal employee “knowingly, or with reason to know…use[s] or attempt[s] 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.”  The Amended OTSC alleges that Respondent violated § 23(b)(2)(ii) twice, by (1) emailing the plan drawings to Shepco, and (2) emailing the plan drawings to Overall. 

Having found that there is no genuine issue as to the material facts in this case, we now find for the reasons stated below that the facts in the light most favorable to Respondent establish as a matter of law that: (1) Respondent was a municipal employee; (2) who used or attempted to use his official position; (3) to secure an unwarranted privilege or exemption for himself or others; (4) which was of substantial value; (5) which was not properly available to similarly situated individuals; and (6) that Respondent did so knowingly, or with reason to know.  G.L. c. 268A, § 23(b)(2)(ii); See In the Matter of Lincoln Smith, 2008 SEC 2152. 

1. Municipal Employee

It is undisputed that Respondent, as Superintendent of the Town Water Department, was a “municipal employee” as defined in G.L. c. 268A, § 1(g). 

2. Unwarranted Privilege

The term “unwarranted privilege” is not defined in the conflict of interest law. Privilege is generally defined as “[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.”  Commonwealth v. Spaulding, 495 Mass. 300, 306 (2025) (citation omitted).  An unwarranted privilege is one that is “lacking adequate or official support: unjustified, unauthorized.”  Spaulding, 495 Mass. at 306 (citation omitted). 

Petitioner alleges that, by emailing the plan drawings to Shepco and Overall prior to the Water Main Project being publicly available for bidding, Respondent secured an unwarranted privilege for Shepherd.  Respondent avers that there was no unwarranted privilege in this case for a number of reasons which are discussed below.   

We find that the undisputed facts establish as a matter of law that Respondent secured an unwarranted privilege for Shepherd.  It is undisputed that Respondent emailed the plan drawings to Shepco and Overall weeks prior to the Water Main Project being publicly available for bidding. Further, the Water Main Project was governed by G.L. c. 30, § 39M² and G.L. c. 149, § 44J³ (collectively, “competitive bidding statutes”). The purpose of the competitive bidding statutes is “not only to ensure that the awarding authority obtain the lowest price among responsible contractors, but also to establish an open and honest procedure for competition for public contracts.”  Modern Cont. Constr. Co. v. Lowell, 391 Mass. 829, 840 (1984) (citation omitted).

One of the legislative goals of these statutes is to create competition “with all bidders on equal footing.”  Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 396 (1994) (citation omitted).  An essential element of “equal footing” is that bidders “have the opportunity to bid in the same way,” and “bear the same risk of rejection.”  Petricca Constr. Co., 37 Mass. App. Ct. at 397 (citations omitted).

Here, when Respondent provided advance access to the plan drawings only to Shepherd’s businesses and not to any other prospective bidder, he gave Shepherd an unfair advantage, undermining the equal footing principle.  As stated in the Affidavit of Richard Saccone, a prospective bidder on the Water Main Project: “[h]aving the Water Main Project plans in advance would have provided the advantage of time, especially with a job of this size,” and “would have allowed [his company] to better understand job site necessities and project planning requirements for the creation of its bid.”  In sum, Respondent gave Shepherd preferential treatment, which amounted to an unwarranted privilege. 

We briefly address Respondent’s reliance on the “Townsend First Policy” (“Policy”) as a justification for sending the plan drawings to Shepco and Overall.  The Policy provides in relevant part that “Within the confines of the law, and all other factors being equal, the Town of Townsend shall…make all reasonable efforts to procure goods and services from Townsend-based vendors in the construction, maintenance, and operation of all construction projects paid for solely with Town funds…” Respondent argues that he was acting in accordance with the Policy when he sent the plan drawings to Shepco and Overall as both are Townsend-based businesses, and that therefore he did not secure an unwarranted privilege for Shepherd.  Respondent’s argument fails because the plain language of the Policy provides that it does not override state law, including the competitive bidding statutes.

Respondent asserts that there was no unwarranted privilege in this case by virtue of his alleged compliance with the provisions of G.L. c. 149, § 44J, but his argument is unconvincing. First, the fact that Respondent may have complied with the requirements of § 44J did not, in and of itself, absolve him from ensuring that prospective bidders were in all other respects on equal footing.  Additionally, we are not aware of any legal authority (and Respondent has not cited any) permitting a municipal employee to provide a prospective bidder with plan drawings for a construction project prior to the project being publicly available for bidding. 

Equally unconvincing is Respondent’s argument that there was no unwarranted privilege in this case because Shepherd possessed certain “advantages” that other prospective bidders did not have (e.g., Shepherd owned certain equipment that other bidders may have to purchase or rent).  The fact that Shepherd may have possessed any advantage, which the awarding authority could certainly have considered when reviewing the bids, did not entitle him to preferential treatment. 

Finally, we address Respondent’s argument that he sent the plan drawings to Shepherd because Shepherd, as Fire Chief, “had an interest in fire prevention and suppression.”  This argument fails for several reasons.  First, Respondent does not explain how fire prevention and suppression relate to the Water Main Project, and we discern no basis for how they may be related.  Further, Respondent did not send his e-mails containing the plan drawings to Shepherd’s Town email or address Shepherd as Fire Chief. Rather, he sent them to email addresses associated with Shepherd’s businesses: Shepherd and his son’s Shepco email addresses and an Overall employee’s email address.  Finally, Respondent’s argument is undercut by his own contention that he was relying on the Townsend First Policy, a policy whose purpose is to benefit businesses. 

3. Use of Official Position 

The term “use” is not defined in the conflict of interest law. Accordingly, the word must be given its ordinary meaning and approved usage.  See Gateley’s Case, 415 Mass. 397, 399 (1993); G.L. c. 4, § 6.  Use has been defined as “to use, employ.”  Webster’s Third New International Dictionary 2523 (1993). 

Petitioner alleges that Respondent used his official position as Water Superintendent to secure the unwarranted privilege for Shepherd.  Respondent does not specifically address this element of the alleged § 23(b)(2)(ii) violations. 

We find that the undisputed facts establish as a matter of law that Respondent used his official position to secure the unwarranted privilege for Shepherd. These undisputed facts are as follows. First, the plan drawings were provided to Respondent by Tighe & Bond because he was the Water Superintendent, and Respondent used his Town email account to communicate with Tighe & Bond in this regard.  Further, Respondent used Town resources, including his Town email account, to transmit the plan drawings to Shepco and Overall.  Finally, in addition to the plan drawings, Respondent’s email to Overall contained a list of “Important Dates” regarding the bidding process, to which Respondent was privy by reason of his official position. 

4. Substantial Value

Substantial value is defined as $50 or more.  930 CMR 5.05.  The Commission has found that non-monetary or intangible advantages or exemptions may be of substantial value.  See In the Matter of Joseph Turner, 2011 SEC 2370.  In fact, in In the Matter of William A. Burke, Jr., where the term “substantial value” was discussed in the context of § 3(b), the Commission found that substantial value “includes items which lack an immediate ascertainable cash value but which nonetheless possess substantial prospective worth.”  In the Matter of William A. Burke, Jr., 1985 SEC 248, 251 (access that state employee obtained by virtue of his official position to the limited time of hospital CEOs for his company’s presentation of its insurance package was of substantial value because it “enabled [his company] to bypass competition with other insurance agents” and therefore “greatly enhanced the chance of a sale”).

Petitioner alleges that the advance access to the plan drawings that Shepco and Overall received was of substantial value because it gave Shepherd a competitive advantage in bidding on a multi-million dollar contract. Respondent avers that such access was of no value because all bids were to be evaluated based on the information submitted in response to the public notice required by G.L. c. 149, § 44J.

We find that the undisputed facts establish as a matter of law that the advance access to the plan drawings that Shepco and Overall received was of substantial value.  It is undisputed that the Water Main Project was a multi-million dollar contract.  Further, as stated by prospective bidder Richard Saccone in his Affidavit, advance access to the plan drawings for the Water Main Project would have been of “great value” because his company would have been able “to perform multiple site visits, to work more thoroughly with its subcontractors to design a project plan, to work more thoroughly with suppliers to determine materials pricing, and to understand the plans for the Water Main Project, all of which would have allowed [his construction company] to more accurately plan its bid and increase its chances of submitting a cost-effective bid.”

Thus, the logical conclusion to be drawn from the evidence in the summary decision record is that having the plan drawings for a multi-million dollar project weeks in advance of any other prospective bidder was an advantage worth at least $50.  Had such access been of little to no value, Respondent would not have taken the time to send the plan drawings to Shepherd, let alone done so twice.  We reach this conclusion fully cognizant that, even without the advance access to the plan drawings, Shepco may still have been the successful bidder on the Water Main Project, on which its bid was $591,814.39 lower than the nearest rival bid. 

5. Not Properly Available to Similarly Situated Individuals 

“Similarly situated individuals” is not defined in the conflict of interest law. Petitioner argues, and we agree, that the similarly situated individuals in this case were the other prospective bidders on the Water Main Project.  See In the Matter of Lincoln Smith, 2008 SEC 2152, 2161 (where Smith sought faster attention by garage personnel to repay him for damage to his car because he said he was a City Councilor, “similarly situated individuals would be those individuals who also believed that their cars had been damaged while in the care of [the parking management company]”).  Petitioner further argues that the plan drawings were not available to the other prospective bidders because Respondent only provided them to Shepherd’s businesses.   

We find that the undisputed facts establish as a matter of law that the advance access to the plan drawings that Respondent provided to Shepherd’s businesses was not available to the other prospective bidders.  First, Respondent only sent the plan drawings to Shepco and Overall.  Further, Shepco and Overall are both owned by the same person: Shepherd. 

Respondent contends that the plan drawings were publicly available and that, given the Water Main Project was discussed at meetings of the Town Conservation Commission, any prospective bidder could have obtained the plan drawings. These arguments fail for several reasons.  First, the plan drawings that were displayed at the Conservation Commission meetings did not show the locations where the horizontal directional drilling would occur, while these locations were shown on the plan drawings Respondent sent to Shepco and Overall.  Further, a prospective bidder based in a neighboring municipality or in another state, for example, may not have known about the Water Main Project to begin with, let alone that it would be discussed at certain public meetings of the Town.  Finally, if the plan drawings Respondent sent to Shepco and Overall had been publicly available as Respondent has suggested, there would have been no need for Respondent to send them to Shepco and Overall. 

6. Knowingly, or with Reason to Know

“Knowingly or with reason to know” is not defined in the conflict of interest law. In In the Matter of Frederick Foresteire, 2009 SEC 2220, the Commission interpreted the phrase as follows:

“Knowingly” is not defined in the conflict of interest law.  It has been defined as “in a knowing manner . . . with awareness, deliberateness, or intention.”  Webster’s Third New International Dictionary 1252 (1993).  See Still v. Commissioner of Employment and Training, 423 Mass. 805, 812 (1996) (act done knowingly “‘if it is [the] product of conscious design, intent or plan that it be done, and is done with awareness of probable consequences’”), quoting Black’s Law Dictionary 872(6^th ed. 1990).  “Reason to know”is also not defined in the conflict of interest law.  It has been defined to “indicat[e] or denot[e] that the actor has, within his knowledge, facts from which a reasonable person of ordinary prudence and intelligence might infer the existence of a certain fact in question.”            

Petitioner alleges that, in providing Shepco and Overall with the plan drawings, Respondent acted knowingly, or with reason to know.  Respondent argues that his actions were not undertaken knowingly, or with reason to know.

The following undisputed facts establish as a matter of law that Respondent provided the plan drawings to Shepco and Overall knowingly, or with reason to know.  On January 27, 2023, Respondent emailed the plan drawings to Shepherd and his son at their Shepco email addresses.  Respondent’s email specifically stated that the attached plan drawings were “going out to bid in 3 weeks.”  Then, on February 2, 2023, Respondent emailed the plan drawings to an Overall employee.  In addition to the plan drawings, Respondent’s email to the Overall employee contained a list of “Important Dates” regarding the bidding process.  These undisputed facts demonstrate that Respondent not only intended to provide Shepherd with the plan drawings, but that he was eager to do so.   

V. Civil Penalty

We turn now to the civil penalty to be imposed in this case.  The Commission may impose a civil penalty of up to $10,000 per violation.  G.L. c. 268B, § 4(j)(3).  As the Amended OTSC charges Respondent with two violations of G.L. c. 268A, § 23(b)(2)(ii), the maximum civil penalty the Commission may impose in this case is $20,000. However, the Commission retains the discretion to adjust the civil penalty in recognition of mitigating or aggravating circumstances.  In the Matter of Owen McNamara, 1983 SEC 150.  The Commission considers the totality of the circumstances when there are reasons for assessing a penalty lower than the statutory maximum.  In the Matter of Daniel Duquette, 2010 SEC 2320; In the Matter of C. Joseph Doyle, 1980 SEC 11; In the Matter of Henry M. Doherty, 1982 SEC 115.

Petitioner has requested that the Commission impose a civil penalty of between $15,000 to $20,000.  We decline to impose a civil penalty within that range for the following reason. There is no evidence in the summary decision record that Respondent personally benefited, whether financially or otherwise, from sending the plan drawings to Shepco and Overall.  As such, we believe that a civil penalty lower than that requested by Petitioner is warranted here.  Compare In the Matter of Jeffrey Fournier, 2021 SEC 2758. A civil penalty of $5,000 per violation, for a total civil penalty of $10,000, is appropriate in this case. 

Vi. Order

Having concluded that Respondent David Vigeant violated G.L. c. 268A, § 23(b)(2)(ii) twice, and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS David Vigeant to pay a civil penalty of $5,000 per violation, for a total civil penalty of $10,000. 

DATE AUTHORIZED: March 26, 2026

DATE ISSUED: April 8, 2026

NOTICE OF RIGHT TO APPEAL

Respondent is notified of his right to appeal this Final Decision and Order on Petitioner’s Motion for Summary Decision pursuant to G.L. c. 268B, § 4(k) by filing a petition in Superior Court within 30 days of the issuance date.

1. Regarding resolution of a motion for summary decision, 930 CMR 1.01(6)(e) states: “A Presiding Officer may deny a Motion for Summary Decision, but only the Commission may grant such a motion.”
2.  G.L. c. 30, § 39M provides in relevant part that construction contracts estimated to cost more than $50,000 “shall be awarded to the lowest eligible responsible bidder on the basis of competitive bids publicly opened and read by the awarding authority forthwith upon expiration of the time for the filing thereof…”  G.L. c. 30, § 39M. 
3. G.L. c. 149, § 44J establishes the procedural requirements for a competitive bidding process (e.g., as to the notice inviting bids) governed by G.L. c. 30, § 39M.  See G.L. c. 149, § 44J(1)-(2).