| Date: | 10/23/2008 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 07-0039 |
At the hearing on this matter, two employees of the Department of Public Works for the City of Revere, Anthony Giannino, Jr. and Randy Adamson, testified that their supervisor, Joseph Maglione, demanded and accepted bribes from them in connection with private contracting jobs they performed installing sewer and water lines in Revere. Maglione denied that he demanded or accepted bribes.
Ultimately, the resolution of this case depends on an assessment of the credibility of the witnesses. On one hand, Giannino and Adamson testified that they made certain payments to Maglione. On the other hand, Maglione testified that he never sought or received any such payment. As set forth below, we find that the testimony of Giannino and Adamson with regard to the bribes was not entirely credible with respect to certain key points. We find that the allegations have not been proven by a preponderance of the evidence, and therefore find in favor of the Respondent.
This action grew out of two other actions brought by Petitioner against Anthony Giannino, Jr. and Randy Adamson for violating G.L. c. 268A, section 17(a) by doing private water and sewer service work in the City of Revere while they worked for the City Department of Public Works. During that investigation, Giannino and Adamson testified that Maglione demanded and accepted payments from them in exchange for signing certificates of occupancy for the properties where they did private jobs. On December 11, 2007, the State Ethics Commission entered into separate disposition agreements with Giannino and Adamson in which each agreed to pay $8,000 for violating section 17(a) by engaging in the private work and section 2(a) by paying bribes to Maglione.
Also on December 11, 2007, Petitioner issued an Order to Show Cause against Maglione. Following the allowance of a Motion for a More Definite Statement, Petitioner filed An Amended Order to Show Cause ("AOTSC") on February 20, 2008.
The AOTSC alleges that Maglione, a municipal employee, violated s. 2(b) by corruptly demanding and accepting payments from Giannino and Adamson in return for allowing Adamson and Giannino's private work to go forward despite the fact that they were not licensed to do it and did not get proper permits, overlooking conflict-of-interest issues, expediting or not requiring the approval process regarding adherence to building codes, and making other preferential decisions favoring Giannino and Adamson. With regard to the same conduct, the AOTSC alleges that Maglione violated s. 3(b) by receiving payments for or because of the official acts or acts within his official responsibility that he performed in relation to Giannino and Adamson. Petitioner also alleges that Maglione violated s. 23(b)(2) by using or attempting to use his official position to secure the unwarranted privilege of payments from Giannino and Adamson, and s. 23(b)(3) by acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that Giannino and Adamson could improperly influence or duly enjoy his favor in the performance of his official duties, or that he was likely to act or fail to act as a result of kinship, rank, position or undue influence.
Five full days of hearing were held on March 24-26 and May 1-2, 2008. In all, twenty-seven witnesses testified.
For the Petitioner to prevail, the Commission must find that the Petitioner has proven its case by a preponderance of the evidence. [1] The preponderance of the evidence standard, as defined by the Supreme Judicial Court, is as follows:
The weight or ponderance of evidence is its power to convince the tribunal which has the determination of the fact, of the actual truth of the proposition to be provided. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may linger there. [2]
To meet this burden, Petitioner must persuade the Commission that, "after fairly weighing the conflicting evidence, [it] feels sure that [its] finding is supported by a greater weight of trustworthy evidence than is opposed to it." [3]
Resolution of this case will require a determination about credibility of the witnesses. [4] The weight to be attached to any evidence rests in the sound discretion of the Commission. 930 CMR 1.01(9)(1)(3). If it finds that some testimony was credible and some was not credible, the Commission is required to provide a reason or explanation for so finding. [5]
Where witnesses on both sides are credible, the Petitioner will not satisfy the preponderance of the evidence standard. "The Petitioner cannot prevail 'if the question is left to guess, surmise, conjecture or speculation, so that the facts established are equally consistent [with no violation as with a violation]". [6]
The water and sewer department of the Department of Public Works ("DPW") handles water and sewer installations and repairs for the City of Revere. Private contractors install or maintain the connections between the City's main water and sewer lines and residential or business properties. Typically, private contractors excavate the area between the private structure and the central utilities for the City. When a contractor performs work in a public way, a street opening permit is required. The DPW issues street permits, and the fee for the permit is $200. [7] Only licensed, bonded drain layers, approved by the City Council and the Mayor, are authorized to obtain a street opening permit. In the ordinary course, the City distributes a list of licensed, bonded drain layers to residential and business property owners.
After an inspection by the DPW, the trench can be filled in and paved over. After subsequent construction is completed, various departments of the City must sign a certificate of occupancy. A homeowner cannot move into a new home until the certificate of occupancy is completed. With respect to new construction, the DPW signed off on two lines of the Certificate of Occupancy: "Public Works (New Construction)" and "Water/Sewer (New Construction)." Before signing off, the water boxes at the site were checked to make sure the house is getting water, and the distance between the water and sewer trenches is checked to ensure that sewage will not contaminate the water supply. With respect to repairs, the DPW did not complete any certificates or any other paperwork.
Joseph Maglione is the water facilities director of the water and sewer department. He reports to the DPW's Superintendent, Donald Goodwin. Maglione has a D2 water license and a D3 full operator's license. [8] Maglione has authority to sign off on occupancy permits with respect to new water installations. At all relevant times, two other employees, Superintendent Donald Goodwin and David Fiore, the water foreman, also had authority to sign off on new water installations. Maglione had no responsibility at the DPW with respect to issuing street permits.
Anthony Giannino, Jr. was foreman of the sewer department. Giannino is Maglione's cousin. Giannino's father and Maglione's mother are brother and sister. Randy Adamson was the drain foreman in the water and sewer department. Maglione was Giannino and Adamson's supervisor. He gave them work assignments and overtime assignments. When there were emergencies, Maglione would call employees in on overtime.
While they were employed by the water and sewer department, Giannino and Adamson also did private sewer and water line work for residences in the City of Revere. Neither, however, was a licensed or bonded drain layer.
In 2001, Giannino did private sewer work for Mark and Kerri Lento at a house near St. Mary's Church in Revere. Giannino did not get a street opening permit. Mark Lento testified that Giannino told him he was a licensed drain layer, and when he asked Giannino whether he had a permit, Giannino said he worked for the City, and "it's all set." [9] (Transcript ("Tr."), 810). Giannino used City trucks and City equipment to do the private job. Maglione and Superintendent Goodwin were aware that Giannino was doing this private work because he initially dug through church property next door and it was "the talk of the yard." (Tr., Maglione, 1223, 1225; Goodwin, 118).
The job "totally failed" on January 25, 2003. (Tr., Lento, 814; Goodwin, 117). Mark Lento called the DPW because he thought it was a City job, and after receiving no assistance, eventually called the Mayor. The Mayor called Maglione, but he refused to get involved with Giannino's side work. Thereafter, the Mayor instructed Goodwin to take care of the problem. Eventually, Goodwin dispatched City trucks, equipment and employees to re-excavate and repair the Lentos' property.
In August 2002, Giannino used City equipment to perform work at a private residence in Saugus, Massachusetts. A friend of Maglione's wife-who happened to live in Saugus-telephoned the Magliones to ask what Revere trucks were doing on a private site in Saugus.
There was somewhat conflicting testimony about what happened next. On the one hand, Maglione testified that he called Goodwin, who told him he knew nothing about the work in Saugus and told Maglione to see what was going on. Maglione said he found Giannino and another DPW employee, Boticelli, using City equipment at the Saugus property. Maglione testified that he told Giannino that Goodwin said to get out of there. Giannino, however, denies that Maglione told them to leave.
Goodwin acknowledges that Maglione told him afterward that Giannino and Boticelli were using City equipment in Saugus. [10] Maglione testified that he also personally complained to Mayor Ambrosino that DPW workers were using City equipment in Saugus and hand-delivered a letter dated August 28, 2002. (Ex. 32). Ambrosino recalled, however, that he learned about the Saugus incident "long after the fact" and did not recall ever seeing the letter. Carolyn Russo, administrator of the retirement fund and a friend of Maglione, testified that Maglione talked about the incident at the time and told her he had reported it to Goodwin and the Mayor.
Later in 2002, Maglione learned that Adamson began working with Giannino doing private sewer repairs in Revere. At that time, Maglione told Superintendent Goodwin that he was not happy that they were doing side work. According to Maglione, Goodwin had no response.
In 2003, Maglione learned that Giannino and Adamson were repairing water lines in addition to the sewer lines. According to Maglione, he was upset that Giannino and Adamson were "starting to touch water" because they could potentially jeopardize his license. (Tr., 1247-1248). Maglione testified that he brought it to Goodwin's attention that Giannino and Adamson were not licensed, bonded drain layers. According to Maglione, Goodwin, once again, "didn't really have a reaction." (Tr., 1247-1248). Maglione separately raised objections with Giannino, telling him "I really don't want youse touching water." (Tr., 1250). In addition, he told the Mayor that he was concerned that Adamson's and Gianinno's unlicensed work could cause contamination to the City's water system.
In the spring of 2004, Adamson bought an excavator, enabling Giannino and Adamson to dig trenches . With the excavator, Giannino and Adamson expanded their business to include both repairs and new water and sewer service installations. Maglione testified that he was upset when he learned they were doing water hookups because they never called for an inspection, but just did them and backfilled the holes after hooking up the lines.
In addition to the excavator, Adamson and Giannino used a tapping machine to drill and tap water mains in connection with their private work. According to Maglione, prior to 2003, the DPW did taps for contractors and charged them $200. In emergencies, when a private contractor's tapping machine has broken, Maglione has allowed the contractor to borrow the City's tapping machine. Ordinarily, however, private contractors used their own tapping machines or contracted with a tapping service to do the work. By contrast, all parties agree that, at least initially, without paying the City, Giannino and Adamson used the City's tapping machine to do their private contract work.
According to Maglione, he repeatedly told Superintendent Goodwin that he was concerned about Adamson's and Giannino's private work in Revere. In response, Maglione testified that Goodwin did nothing. By the spring of 2004, Maglione testified, he did not think it was worthwhile going to the Superintendent or the Mayor again because he "felt like it was starting to fall on deaf ears." (Tr., 1257). He said, "…whenever I would say to the mayor, the mayor would check with Donny [Goodwin], and Donny would always come back with a different remark for it. Always have another - another answer for it." (Tr., 1257).
In 2003 or 2004, people in the DPW yard began referring to the trio of Giannino, Adamson, Goodwin as "GAG Construction." Several witnesses testified that the term was a joke, referring to the association among the three individuals. Giannino, for example, would say, "We have another GAG job." (Tr., 1316). The DPW's water foreman, David Fiore, similarly testified that it was "an everyday occurrence" to hear the term GAG Construction. (Tr., 1062). Paul Argenzio, the DPW's general foreman, did not know whether it was an actual entity or just a term that somebody came up with.
There was no evidence that Giannino, Adamson, Goodwin were ever actually in business together. For purposes of this opinion, we need not reach that issue. In any event, Maglione testified that he saw Goodwin at some of Giannino and Adamson's private jobs. Maglione observed, "[Goodwin] protects them an awful lot." (Tr., 1406).
Beginning in the spring of 2004, there is considerable disagreement between the parties concerning the facts at issue. On the one hand, Maglione testified that his objections to this private work escalated. One day in the spring of 2004, David Fiore told Maglione that Giannino and Adamson were doing a job on Sewall Street and had closed down the water on a whole street. Upon learning that Giannino and Adamson were continuing to do private water work in Revere, Maglione got "real upset" and drove with Fiore to a greenhouse where Giannino's father, Anthony "Chicky" Giannino, Sr., worked with Maglione's mother. Maglione told Anthony Giannino, Sr. he wanted his son to stop doing side work.
Maglione testified that he said, "I want the kid to stop… [I]t's my license they're dealing with. They don't care… [but] if they screw up, it's my license…. They are going to come looking for me if there is a contamination problem. (Tr., 1261). Several witnesses corroborated the fact that Maglione objected to Giannino's private work. Fiore, Florence Maglione and Crezenso Giannino each testified that Maglione objected to Giannino's private work and asked Chicky Giannino to direct his son to cease his private work. [11]
Summarily, Carolyn Russo, the administrator of the retirement plan for the City of Revere, testified that she frequently spoke with Maglione about his continuing objections to Giannino and Adamson's private work. She said Maglione demonstrated "increasing frustration" because his objections were met with silence and Adamson and Giannino were permitted to continue their private water and sewer work in Revere.
Anthony Giannino, Sr., said they were not doing anything wrong. Maglione said that if something went wrong, everybody would be in trouble and it would affect his license.
On the other hand, the Petitioner alleges that - far from objecting to the private work - Maglione began demanding cash payments from Giannino and Adamson. Specifically, Giannino testified that in the spring of 2004, [12] he and Maglione were walking out to Maglione's old yellow truck and talking "about a private job or something," and Maglione said, "hey, don't forget to FMI me." (Tr., 254). Maglione said that "FMI" meant "Figure me in." (Tr., 254). Maglione said, "It's my license. It's my water. It's my signature." (Tr., 255). "And that's what he told me, so everything would go smoothly." (Tr., 254-255). Afterward, in the DPW yard, Giannino told Adamson about Maglione's demand for a bribe. Adamson testified that about a week later, Maglione told him that "he wanted $200 per job or don't touch his water." (Tr., 571). He also said that Maglione told him that "it was his signature and his license, his water." (Tr., 572). They decided that, to continue doing their private work, they were going to have to pay him.
Except for this initial conversation, neither Giannino nor Adamson remembered any further specific conversations with Maglione about the payments. Rather, Giannino testified that, generally, every time they had to do a job, Maglione "would always state his license was on the line. It was his license, his water, his signature every time." (Tr., 259). When asked whether these statements continued, Giannino testified, "They - after a while, no, they stopped. Because we knew that it was a common thing that, if we touched his water, or it was a new home with his signature, we needed his signature, so we just automatically knew that we had to pay him." (Tr., Giannino, 259-260).
Adamson and Giannino offered disparate reasons for these alleged payments. First, they testified that in return for their bribes, they expected Maglione to sign off on occupancy permits. Giannino testified that Maglione had to sign off on certificates of occupancy because he had the water license, and that he did not know at the time that Goodwin or Fiore could sign off. Adamson said that they paid Maglione because he "made it so if we didn't give it to him, we wouldn't have no occupancy permit and we wouldn't have been able to do the jobs." (Tr., 605). He said that "would have crippled us." (Tr., 605). Adamson, however, acknowledged that he knew Goodwin could sign off on these certificates. Nevertheless, he said that he never went to Goodwin to sign off because Maglione had the water license.
Second, Giannino and Adamson testified that they made payments to Maglione so that they could continue to use the City's tapping machine. Adamson, for example, testified that Maglione said that if they did not give him money, they could not use the City's tapping machine. Giannino testified that every time they would do a private job requiring a tapping machine, they informed Maglione that they were going to be borrowing the DPW's machine. Giannino testified that they told Maglione on every occasion because Maglione had told them that "if there was ever an emergency in the middle of the night, he needed to know where that piece of equipment was, because he wouldn't be able to perform the job if he didn't have that or knew where it was." (Tr., 253).
Finally, there was testimony that Giannino and Adamson made these payments to keep their direct supervisor, Maglione, happy. For example, Giannino testified that he was concerned that if they did not pay Maglione for his water, then Maglione could give him less preferable job assignments or "could cut me out of overtime" and "make a lot of things very miserable for me." (Tr., 265).
Giannino and Adamson gave varying testimony about the timing of the bribes. At the adjudicatory hearing, Adamson testified that they began paying Maglione in 2004. When the Enforcement Division deposed him on November 1, 2006, however, he had testified that they started paying Maglione two years earlier, in 2002. In particular, Adamson testified that they gave Maglione $200 for projects "five times a year since 2002." (Tr., 664, 633). Reminded of his earlier testimony, Adamson said that he did not know why he said that, and that he did not recall giving him money back then.
At the adjudicatory hearing, Giannino first testified that the period during which they paid Maglione bribes was from the summer of 2003 to the summer of 2005. He said they paid Maglione FMI throughout "the two and half year period, two year period." (Tr., 264). Later, in his testimony, he changed the starting date to 2004. He listed only ten jobs during the one-year period.
Giannino and Adamson similarly gave disparate testimony concerning the number of jobs at issue. Initially, Giannino testified that they paid Maglione for "20 to 30 jobs." (Tr., 264). Adamson testified that they paid Maglione "five time a year since 2002." Assuming the FMI period extended from 2002 to 2005, Maglione presumably would have received 15-20 payments.
Later, however, Adamson and Giannino revised this testimony. Instead of twenty projects, they each testified that they made payments to Maglione with respect to work they did at new homes on only eight properties. The eight properties were: 33 and 33A Sagamore Street, 111 Oxford Street, 18 Sewall Street, 6 Harrington Street, 63 Centennial Street, 37A and B Cheever Street, 13 Essex Street and 32 Pearl Street. In addition, they testified that Maglione referred them a sewer repair job at George Ave. and a water repair job at Page Street. They each testified that they paid him in cash, and that Adamson usually was the one who delivered the money to Maglione.
With respect to each of the eight properties where they installed new service, Giannino and Adamson testified that Maglione knew that these were Adamson and Giannino jobs because they told him. Except for Cheever Street, they testified that no street permit was obtained before they did the work. At Cheever Street, the homeowner had hired a contractor who obtained a street opening permit, and Giannino and Adamson did their work under his permit. Giannino testified that with respect to all of the new homes listed above, Maglione was aware that they used the City's tapping machine on the project because they told him. Giannino testified that although it was Maglione's job to do inspections, he did not inspect any of their private jobs.
Giannino and Adamson have provided varying information over time about how much they paid Maglione for the private jobs. At the adjudicatory hearing, they testified that they gave Maglione $200 each time they opened a hole for a water installation. (Tr., 258, 573). For a duplex, which required two holes, they said they paid Maglione twice the amount. (Tr., 271, 573). Adamson testified, "Sometimes, if we didn't make enough money, we would give him a little less." (Tr., 573). Giannino and Adamson both specifically testified that they paid Maglione $200 for each new water installation job listed above -- $400 for Sagamore Street because it was a duplex -- and also for the repair jobs at George Street and at Page Street. (Tr., 270-306, 579-603).
This testimony differed from earlier testimony that Giannino gave at a deposition on November 1, 2006, closer to the time of the reported bribes. At that time, Giannino said that they gave Maglione $250 or $350, depending on the job. He said, "If it was two jobs, it would be two times that." (Tr., 386). He testified, "If we did only one job, it was 250. And the next one would be 250, 300. So, whatever it was, boom, he would get paid 600 from two different homes." (Tr., 386). [13]
Giannino gave two different explanations for the discrepancy between the $250 he mentioned at his deposition and the $200 he mentioned at the hearing. First, he said that the $250 was $200 for Maglione and $50 if they had to borrow the tapping machine because "when he [Maglione] was charging other contractors it was 250 every time he charged a contractor to use the tap machine." (Tr., 387). The next day, he explained: "I think I made a mistake on the 250, because I was paying Randy 250 for his machine, because he owned the machine and a dump truck." (Tr. 422). He switched from one explanation to the other after speaking with Adamson, who told him, "[t]he 250 was for the machine and the 200 was for Joe." (Tr., 423).
Giannino also gave different explanations about the $350 figure that he had mentioned at his deposition. First, he stated that the $350 figure was correct "[b]ecause if we threw him [Maglione] money, I think, there was one job that we did a sewer and a water. I don't know if we gave him $350. I didn't know my exact numbers, but I remember giving him $350 on a job." (Tr., 387).
At the adjudicatory hearing, Giannino testified that they paid Maglione $750 on Patriots Parkway. He said that $400 of the $750 was for Sagamore Street. (Tr., 389). With respect to the other $350, Giannino testified, "350 was 150 - we threw him for another job, said we ain't going to give him all of that. I think we just cut him short on it is what we did." (Tr., 389). He subsequently testified that the $350 was for "three jobs;" it was for "three other jobs" (Tr., 390); it was for "two other jobs" (Tr., 391); it was for "three altogether;" (Tr., 408); it was "[p]robably a water job that we did….Then, the two on Sagamore. That is three." (Tr., 409).
For his part, Adamson testified that they paid Maglione $400 for Sagamore because it was a duplex. (Tr., 578, 579) Of the $3,000 they made for doing the work at Sagamore Street, he remembered giving $400, not $750, to Maglione. (Tr., 657). At his deposition on November 1, 2006, however, he had testified that one time he gave Maglione $750 "because it was a big project," and that he believed it was for Sagamore Street. (Tr., 666). When he was reminded about his deposition testimony, Adamson said he believed his testimony on November 1, 2006 was incorrect. He testified that he did not give Maglione $750 solely for Sagamore Street, and he did not recall what else the $750 was for. (Tr., 667). At a different point in his testimony, Adamson also said that they gave Maglione $750 on Patriots Parkway "for a few different jobs," but did not know "which exact ones." (Tr, 575).
Adamson and Giannino each remembered only the same three specific instances when they delivered bribes to Maglione: once on Patriots Parkway, once when Maglione's son was present, and once after they discussed it in the City yard. (Tr., Adamson, 574-575; Giannino, 261-263).
With regard to Patriots Parkway, Adamson testified that they told Maglione to meet them there, they had something for him, and they met him there and gave him $750. (Tr., 575). Giannino testified that for the Sagamore job, they called Maglione and told him to meet them on Patriots Parkway, and that they handed him $750 in cash and drove off. (Tr., 262).
Giannino and Adamson told very similar stories about the instance when Maglione's son was present when they paid Maglione, although, upon analysis, each said he was the driver:
Giannino: I remember being on - we were going on Revere Street. I was driving. Randy [Adamson] was in the passenger. We pulled Joe over, gave Randy the money. He pulled it out of his pocket transferred it over to him. His son was in the truck when Randy gave him the money." (Tr., 263).
He said thank you." (Tr., 266).
Adamson: I was driving down Revere Street. I beeped to Joe. I pulled up alongside of him. And I had $200 in my hand. And I handed it out the window to his son. And his son handed it to him and Joe said thank you." (Tr., 574).
Both witnesses also testified similarly about the incident when Adamson told Giannino to give Maglione a partial payment:
Adamson: And one time, Joe was hounding - hounding us for the money. And we didn't have it at the time. And then, I just - I gave $150 to Anthony. I said, 'here, just go get it to him and get him off our ear.' And that was in the City yard." (Tr., 575).
Giannino: Down the department of public works, yes…. I remember Randy coming to me and said that he was - Joe was nagging him about paying about a certain job we had did maybe two weeks before that. He just goes - he goes, "just go pay him. Get it done. Just go give it to him." (Tr., 263).
Besides the few incidents he mentioned, Adamson testified that he could not remember any other incidents when he paid Maglione. Adamson stated, "Just because it became such nonchalant, just after the job, gave it to him. It was just routine." (Tr., 576).
Adamson was asked whether he recalled any particular discussions with Maglione where they talked about the bribes being for any of the ten projects they did. Adamson explained, "Each time I would give Maglione the money, I'd just say this was for Oxford, this was for this one, this was for that. I would say it each time I gave it to him." He said that Maglione said, "Thank you." (Tr., 693). Adamson said that there was not anything else that stood out in his mind from those conversations at all.
For his part, Maglione consistently stated that he did not demand or accept payments from Giannino and Adamson. He specifically denied receiving bribes for their work at Sagamore Street, Oxford Street, Sewall Street, Harrington Avenue, Centennial Avenue, Cheever Street; Essex Street; and Pearl Avenue. He also denied demanding or accepting payments for the two repair jobs which Giannino and Adamson say he referred to them: George Ave. and Page Street.
Maglione testified that Giannino and Adamson never told him they were going to do a job. He testified that he overheard them talk about the jobs, heard about their jobs from other people, saw trenches or found out about their jobs long after the fact or when it was time to sign off. [14]
Maglione specifically denied taking any money from Giannino and Adamson to allow them to use the tapping machine. He testified that he found out that they used the tapping machine for their private jobs "after the fact." (Tr., 1496).
Maglione indicated that he did not excuse Giannino and Adamson from requirements with regard to pulling street opening permits or getting inspections with regard to these jobs. He testified that he had no responsibility for issuing street opening permits. He acknowledged that he did not check to see whether Giannino and Adamson had pulled street opening permits when he was signing off on certificates of occupancy, but testified that it was not normal procedure to do so. Maglione said that he brought it to Goodwin's attention that Giannino and Adamson were not getting street permits, and nothing was said about it. Maglione also confirmed that he did not do inspections of Giannino and Adamson's private work, but protested that he never was called to do any inspections of their work.
The following chart shows the dates when sign-offs were done on certificates of occupancy for the nine properties for which Giannino and Adamson say they paid Maglione bribes, and who signed off.
Ex. No. Property Date of sign-off Who signed off
19 33A Sagamore St. 11/30/04 Goodwin
20 33 Sagamore St., Unit B 11/30/04 Goodwin
24 111 Oxford St. 12/20/04 Goodwin
23 18 Sewall St. 2/2/05 Maglione
17 6 Harrington St. 6/23/05 Maglione
18 63 Centennial St. 7/19/05 Maglione
21 37A & B Cheever St. 2/21/06 Maglione
25 13 Essex Street 3/3/06 Maglione
22 32 Pearl Ave. 6/23/06 Goodwin
Giannino and Adamson testified that they made payments to Maglione for the two units at Sagamore Street and for Oxford Street. Yet, Superintendent Goodwin, not Maglione, signed off on the "Water/Sewer New Construction" line for these properties.
Goodwin and Maglione gave contradictory testimony on why Goodwin signed off. Goodwin testified that he signed off on these three certificates only after speaking with Maglione. [15] On the other hand, Maglione testified that Goodwin signed off on Sagamore Street and Oxford Street because he refused to do it. He indicated that the authority he should have had because of his water license was undermined when Goodwin overruled him. [16]
In any event, both Maglione and Goodwin testified that, in late 2004 or early 2005, Maglione met with the Mayor and asked to have exclusive sign-off rights on certificates of occupancy.
Maglione testified that around this time, he had disputes with Giannino and Adamson because they failed to respond when the night watchman would call them in for emergency work, so he would have to go out himself on the calls. He said that it was an "unwritten rule to be on call 24 hours." (Tr., 1422). Maglione said that he spoke to Goodwin and the Mayor about Giannino and Adamson's failure to respond to emergency calls. The Mayor recalled having conversations about the issue with Maglione. The night watchman, Thomas Feeley, also confirmed that there were times he was unable to reach Giannino and Adamson, and that he spoke several times to Goodwin about it.
Maglione acknowledges that he signed three certificates of occupancy for Sewall Street, Harrington Street and Centennial Street between February and July, 2005. Petitioner contends that Maglione signed off because Giannino and Adamson were paying him bribes. Maglione testified that he signed off because the Superintendent and the Mayor had no problem with Giannino and Adamson doing private jobs, and "[n]obody else seemed to care that they were doing the work." (Tr., 1269-1270). He testified that he signed off on these three properties "in the midst of me trying to get them to stop their work" or "in the midst of arguing my point about their work." (Tr., 1370; 1373.) In addition, Maglione was aware that his refusal to sign these certificates could delay the homeowners from taking occupancy. He testified that he did not think that the homeowner should suffer delay under these circumstances.
Although Maglione signed these three certificates, there was evidence that he continued to object to Giannino and Adamson's private work in the city. In March 2005, for example, Maglione and Paul Argenzio, the general foreman, were in the Fenno Street neighborhood where Adamson and Giannino has been doing some private work. Revere City Counselor George Rotondo lived nearby. Maglione, Argenzio and Rotondo discussed the fact that these two DPW workers were doing private contract work in the city. According to Maglione, Rotondo was asking a lot of questions about procedures for water, sewer and drain work and had gotten some complaints about work that Giannino did. (Tr.,1334). Maglione told him that he "was fighting a losing battle, because I've talked to everybody about it … they say it's okay for them to do it." (Tr., 1334-1335).
Rotondo similarly testified that, at Fenno Street, Maglione told him that Giannino and Adamson were doing drain laying work and had poor workmanship. Maglione told him that he had complained to the Mayor, Goodwin, "to everybody and no one is doing a damn thing about it." (Tr., 1139; 1133-1134). Rotondo took notes of the conversation on a newspaper dated March 16, 2005. (Tr., 1134; Ex. C for identification).
Adamson testified, and Giannino confirmed, that they "just decided" to stop paying Maglione. Giannino stated that they did this in the summer of 2005; Adamson said it was in late August or early September. (Tr., Giannino, 309, 312; Adamson, 606). Neither offered any particular reason for stopping the payments. Instead, they simply testified, "Just didn't want to do it no more. Just didn't want to pay him no more." (Tr., Adamson, 682).
Adamson testified to the following:
Q: Did FMI, at some point, stop?
A: Yes, it did.
Q: Why?
A: Because, we just got tired of giving him money. And we just decided that we wasn't going to give it to him no more.
Q: Was Mr. Maglione informed that you were not going to pay FMI any longer?
A: Yes.
Q: How was he informed?
A: He came up to me one day and asked me if I forgot him on a job. And I told him right out that I didn't forget him. And I just walked away from him.
Q: Did anything happen next?
A: Then, a day or two later, he came up to me again and asked me if I forgot him again. And I said, "No, I didn't forget you." And I just walked away again.
That was my way of telling him it was over.
(Tr., 605).
Q: What was it that made you decide to stop paying him?
A: Just did.
Q: So you started -
A: Just didn't want to give him no more money.
(Tr., 650).
Q: And what made you decide to do that that day? What had happened? Or prior to that day, that made you decide to do that?
A: We just decided we weren't going to give him no more money. And we were just going to go and get - use other contractors and just do it and get our own tapping machine and have nothing to do with him.
Q: And why did you not want to pay him any more money at that point?
A: Because just -- he wasn't doing nothing for work wise to give him money. I just felt like it wasn't in our best interest to give it to him anymore.
(Tr., 651-652).
Giannino's explanation included more detail about the way they made the decision, but not about the reason. He testified that they stopped paying Maglione in the summer of 2005. (Tr., 309).
Q: Why?
A: We got tired of paying him for nothing.
Q: Were you going to continue doing work?
A: Randy and I were sitting down talking how we were going to do this. This was in the summer of 2005, just before the end of 2005. And he said, well, "we have to buy our own tap machine, because we aren't going to - we can't do it unless we have a tap machine. It ain't going to be any good for us if we do a new home." And we would have the people pull up permits for us. And then, we would get around it and not have to deal with it anymore.
(Tr., 310).
On direct examination, Giannino testified:
Q: Was there a certain project that stopped the FMI?
A: No, not that I know of. No.
Q: No?
A: No.
Q: Was FMI ever brought up again?
A: No, it was not.
(Tr., 312).
Giannino testified that in the fall of 2005, Maglione refused to sign off on certificates of occupancy unless he and Adamson got street opening permits. Adamson and Giannino testified that Maglione first began to refuse to sign off on occupancy permits only after their payments to Maglione allegedly stopped. Giannino testified that they called a contractor after the fact and asked him to pull street opening permits for the work they previously had done at Pearl Ave. and Essex Street. Goodwin issued street opening permits to the contractor for Pearl Ave. on September 9, 2005 and for Essex Street on October 7, 2005. (Ex. 27, 28).
Not surprisingly, Maglione offers a different explanation for his refusal to sign certificates in late 2005. According to Maglione, he "had had it" by the fall of 2005 (Tr., 1270). He said there was an "Ethics thing going on" and "people were starting to look into it a lot." (Tr., 1271). He testified, "George Rotondo had come to me that he wasn't happy. Other politicians were talking about it." (Tr., 1271). Specifically, Rotondo found out that Giannino and Adamson had not pulled a street opening permit for their work on Essex Street and "had done a ton of jobs like that." (Tr., 1142-1143). Mayor Ambrosino, Superintendent Goodwin and Giannino all confirmed that Rotondo was asking questions about Giannino and Adamson's private work in the fall of 2005.
Meanwhile, tensions increased at the DPW. There is some dispute about when the next events occurred. Maglione, responding to an emergency, found that the tapping machine was missing and discovered that it was at Giannino's house. He complained to Goodwin, who retrieved the tapping machine and moved it from the water bay, where it was accessible to all of the water department employees, to his own office. Adamson and Goodwin testified that the tapping machine was moved in September or the late summer or early fall of 2005. Maglione said it happened after the water break at Essex Street on January 12, 2006. Giannino and Adamson subsequently moved out of the office they shared with Maglione to an office down the hall. Goodwin says that this happened in late 2005; Maglione's diary reminded him it was on February 16, 2006.
On February 21, 2006, Giannino and Adamson purchased their own tapping machine. According to Giannino, they did not purchase a tapping machine earlier because they did not have enough money to purchase the machine. When pressed about whether he actually did have enough money earlier, Giannino revealed that he had won a million dollars on a scratch ticket in the lottery, but testified that he did not win the lottery until November, 2006. He mentioned this date three times. A UCC Statement subsequently entered into evidence, however, showed that he won the lottery in November, 2005. (Ex. 31).
At the beginning of 2006, Rotondo brought his concerns about Giannino and Adamson's private work before the City Council. In February, 2006, the City Council passed a motion asking the Mayor to write to the Ethics Commission to ask whether DPW employees could do private work in Revere.
The Mayor, Goodwin and Maglione all testified that Maglione and Goodwin met with the Mayor in February, 2006 because Maglione refused to sign off on certificates of occupancy for work Giannino and Adamson did at Cheever Street and Essex Street. [17] Maglione's work diary indicates that the meeting occurred on February 17, 2006. Maglione testified that he called the meeting because he was not going to sign off on any more certificates of occupancy for Giannino and Adamson's private work.
The Mayor recalled that at the meeting, a couple of homeowners were looking for occupancy permits. The Mayor did not want the homeowners to be prevented from taking occupancy if the work was sufficient. Accordingly, the Mayor instructed Maglione to satisfy himself that the connections were correct, and asked him to sign off. The Mayor testified: "If the connection is correct, if they have done the work properly, forget about whether they had permits. Forget about whether it is ethical. If they have connected properly to the system, I am instructing you to sign off on it. I'll take responsibility for all the other stuff, because that's really my purview." (Tr., 503-504). The Mayor described Maglione as "fairly resistant." Ultimately, Maglione testified that he agreed to sign off on these last three houses because he "felt bad for the poor contractor…for the poor homeowner, the person that's building a house, that they get stuck in the middle of something that's going on like that." (Tr., 1283, 1284). Maglione told the Mayor that these would be the last certificates of occupancy he would sign for Giannino and Adamson's work.
Maglione signed occupancy permits for 37A & B Cheever Street on February 21, 2006. (Ex. 21). Maglione required Giannino and Adamson to re-excavate at Essex Street and do the proper repairs to satisfy him before he agreed to sign off. He signed off on the certificate of occupancy for 13 Essex Street on March 3, 2006. (Ex. 25). Maglione did not sign off on any more certificates of occupancy for Giannino and Adamson's work. Goodwin signed off on the Pearl Ave. occupancy permit on June 23, 2006. Goodwin testified, "At this point in time, Joe was kind of upset about what was going on and transpiring and he wasn't inclined to sign off. So, I signed off." (Tr., 93).
The Mayor wrote to the Ethics Commission on March 6, 2006, asking for an opinion about whether DPW employees could do private work. (Ex. 5). On March 22, 2006, the Ethics Commission sent the Mayor an opinion saying that DPW employees could not do private work. (Ex. 14). The Mayor notified Giannino and Adamson that they could no longer do private work.
Meanwhile, during this period of public scrutiny, Giannino and Adamson flatly denied any alleged bribes in connection with their private work. In an article on March 1, 2006, Giannino was quoted in the Revere Journal as saying, "there had been no corruption here whatsoever. There were no kickbacks, no pay offs." (Tr., 323, 328). Giannino testified that the reporter had asked him about a rumor that Goodwin had been getting kickbacks. Giannino testified that he therefore intended his answer to be limited only to Goodwin. (Tr., 323).
However, the reporter, Seth Gordon Daniel, testified that he was not asking about Goodwin. Daniel stated that he met with both Giannino and Adamson, and testified as follows:
Q: When you were meeting with them, and asking them about this subject, who - whose involvement were you inquiring about?
A: Anthony Giannino Jr. and Randy Adamson.
Q: And that response that you have in the paper that you got from Mr. Giannino Jr., was that in reference to your inquiry about his involvement or someone else's?
A: His and Randy Adamson's.
Q: Okay. If I were to suggest to you, that Mr. Giannino said you were asking about Donald Goodwin, what would your response be?
A: No, that's not true.
(Tr., 796).
In June, 2006, the Enforcement Division received a complaint about Giannino and Adamson's private work and subsequently called Giannino and Adamson in for depositions in early November, 2006. Both Giannino and Adamson testified that they brought up the payments they made to Maglione when the Enforcement Division questioned them in November, 2006 about why they were able to do their private jobs without getting permits. Each testified that this was the first time they told anyone about the payments to Maglione.
The only proof of bribes offered at the hearing was Giannino and Adamson's testimony. No witness besides Giannino and Adamson corroborates their testimony about the payments. Nor were there any documents concerning the alleged payments. Consequently, a determination about whether Maglione bribed Giannino and Adamson depends on whether Giannino and Adamson's testimony is credible.
In weighing their testimony, we are cognizant that both Adamson and Giannino made statements against their own interest. During their deposition testimony, both men implicated themselves in the scheme that gives rise to the present action. They each testified under oath that they made payments to Maglione in connection with the private work that they were doing in Revere. In addition, each man acknowledged, in their respective disposition agreements, that these payments constituted violations of G.L. c. 268A, s. 2(a).
Statements against interest are generally very persuasive evidence. [18] They are not, however conclusive. Here, these statements must be evaluated in the context of Adamson and Giannino's testimony-and the conflicting testimony from Maglione and other witnesses-- in this case. As set forth below, Giannino and Adamson's testimony is inconsistent on certain key facts-including the existence of the payments, the timing and amount of the alleged payments, and the alleged purpose for these advancements. As a result, we find that Petitioner has failed to meet its burden of proof.
Giannino offered wholly contradictory stories concerning the very existence of these bribes. On March 1, 2006, Giannino categorically denied any bribes. At that time, he told a newspaper reporter that there was "no corruption here whatsoever" and "no kickbacks, no payoffs." In the present case, Giannino's story has obviously changed; he now says that he and Adamson made a series of "kickbacks" and "payoffs" to Maglione. In an attempt to explain this apparent inconsistency, Giannino said that his statement to the newspaper was limited to denying any alleged payments to Donald Goodwin. The newspaper story, however, does not suggest any such limitation. In addition, the newspaper reporter testified that his questions were not limited to Mr. Goodwin. (Tr., 796). We therefore do not credit Giannino's testimony that his statements to the reporter were intended to be limited to alleged payments to Goodwin.
Second, Giannino and Adamson wavered on the period of these alleged bribes. Initially, Adamson testified that these bribes began in 2002. Later, he suggested that the bribes did not begin until 2004-two years later. For his part, Giannino initially testified that the bribes began in 2003 and later changed his testimony, saying that the bribes did not begin until 2004. (Tr., 264, 465-468). As a result, it is unclear when precisely the alleged payments took place.
Third, Giannino and Adamson offered contradictory testimony on the amount of bribes at issue. At the hearing, both men testified that they paid Maglione $200 each time they did a water installation. Yet, at his deposition, Giannino testified that they paid $250 to $350 depending on the job. (Tr., 386).
Having offered these disparate figures, Mr. Giannino found himself caught in a math problem at the hearing. In particular, he testified that they gave Maglione $750 on one occasion in their trucks on Patriots Parkway. According to Giannino, $400 of the $750 was payment for two water hook-ups at Sagamore Street. (Tr., 389). Giannino, however, could not account for the remaining $350. He initially testified that the remaining $350 was for "three other jobs" and then changed his testimony, saying that it was for "two other jobs." (Tr., 390, 408, 409). Even still, the math did not add up; if they paid Mr. Maglione $200 per installation, then two jobs would have amounted to $400, not the $350 at issue. Adamson also could not explain the arithmetic regarding the $750 payment. (Tr., 575, 657, 666, 667).
Fourth, Giannino and Adamson's proffered explanation for the rationale of these payments stretches credulity. Initially, they said that they paid Maglione in exchange for his sign-off on occupancy certificates. The undisputed facts, however, make clear that Mr. Maglione did not have exclusive authority in this area. Indeed, both Mr. Goodwin and Mr. Fiore could-and in some instances did-- sign off on these certificates. In fact, Petitioner's theory in this case is that Maglione approved a series of six certificates of occupancy during 2004-2005 (for 33 and 33A Sagamore Street, 111 Oxford Street, 18 Sewall Street, 5 Harrington Street, and 63 Centennial Street) because he received payments to do so. The central problem with this theory, however, is that the first three certificates of occupancy for Sagamore Street and Oxford Street were signed by Goodwin. [19] As a result, Giannino and Adamson were not dependent on Maglione to approve their work, as Petitioner suggests.
Perhaps realizing the thin nature of this rationale, Giannino and Adamson offered another explanation for the payments. They testified that they felt they had to pay Maglione because otherwise he would reduce their overtime assignments. Yet, the record makes clear that they had little interest in additional work. To the contrary, several witnesses testified that Giannino and Adamson were difficult to reach during off-hours and that they failed to respond to emergency calls.
Alternatively, Giannino and Adamson suggested that they made these payments so that they could continue to access the city's tapping machine. This rationale is similarly unconvincing. As a preliminary matter, Giannino and Adamson testified that they ceased payments in the summer of 2005 and did not seek to purchase a tapping machine until months later at the beginning of 2006. If the tapping machine was (as they now suggest) crucial to their business, they would not have waited so long to purchase a machine-particularly given Mr. Giannino's good fortune of winning the lottery in November 2005. More importantly, neither man mentioned the tapping machine as any kind of rationale for these payments when they were first deposed in November 2006. It therefore seems to be a more recent explanation for the alleged payments.
Finally, the accounts that both Adamson and Giannino gave about their decision to discontinue payments to Maglione in the late summer or early fall of 2005 were not credible. They each testified that they simply stopped payments arbitrarily. Neither man provided any reason why they chose to stop these payments at that time rather than any other point in time. If these payments were as crucial as they first described, it does not make any sense that they would simply stop the payments and seek to continue business as usual.
All of these facts are obviously weighed in a broader context. Here, there was evidence to suggest that Giannino and Adamson had a somewhat casual regard for the truth. By their own accounts, Adamson and Giannino secretly paid bribes to their supervisor to overlook shoddy and nonconforming work. In and of itself, this alleged scheme suggests some degree of deception. Homeowners such as the Lentos were deceived that these two individuals had the ability and authority to perform the work as promised. Even today, Mr. Giannino's testimony suggests a belief that he was entitled to cut corners. For example, with regard to whether he knew that he needed a street opening permit to do the private job for the Lento family in 2001, Giannino "thought that, because we worked for the City, maybe we had a little leeway and stuff like that." (Tr., 457). "… I thought, maybe where I worked for the City of Revere that I would be able to - we would be able to get away with it." (Tr., 459).
Perhaps most startling, Giannino claims not to remember the date when he won a million dollars on a lottery scratch ticket. That fact was somewhat relevant to the issue of Giannino's ability to purchase a tapping machine. More importantly, Giannino's professed lack of memory on this point is surprising enough to raise larger questions about either his memory or his credibility.
At the same time, witnesses including Mayor Ambrosino and Councilman Rotondo testified that, in their experience, Maglione was truthful or honest. Three other City Councilors testified that Maglione enjoys a positive reputation in the local community for truth and veracity. [20] Three contractors who dealt with Maglione as a City inspector praised his professional conduct and testified that Maglione never asked them for a bribe or kickback. [21]
Of greater significance, several witnesses corroborated Mr. Maglione's testimony on several key facts. Caroline Russo, for example, corroborated that Mr. Maglione objected to Giannino and Adamson's private work dating back to at least 2002. We credit Russo's testimony and therefore find that Maglione did not-as the Petitioner suggests-begin his objections only after the alleged payments stopped in 2005.
Similarly, David Fiore, Florence Maglione and Crezenso Giannino all corroborated Maglione's testimony concerning the events in the greenhouse in 2004. All of these witnesses testified that Maglione was upset and confronted Giannino's father in an attempt to have him stop his son's private water work in Revere.
In addition, Councilman George Rotondo corroborated Maglione's testimony concerning the events on Fenno Street in March 2005. Rotondo testified that Maglione complained to him about the poor quality of Giannino and Adamson's private work and his futile attempts to get the Mayor or Goodwin to stop their work.
Finally, the Mayor and Goodwin corroborated Maglione's testimony concerning his refusal to sign certain certificates at the beginning of 2006.
At bottom, Giannino and Adamson's testimony was too lacking in detail and unspecific, and in some instances too confused and contradictory, to credibly support a finding that Maglione demanded and accepted bribes from them. At the same time, Maglione offered credible evidence that he objected to the private work at issue and never sought or received any payments. Taken together, we cannot conclude that Petitioner has met its burden of proving the alleged payments by a preponderance of evidence. As a result, we find for the Respondent.
For the reasons set forth above, the Petitioner has not met its burden of proof. Our resolution of the difficult credibility issues presented by this case should be regarded as a critical assessment of the various witnesses' testimony, and not in any way as a criticism of Petitioner's counsel. The quality of advocacy on both sides in this matter was exemplary. However, after weighing the evidence, the Commission concludes that Petitioner has not proven, by a preponderance of the evidence, that Maglione violated G.L. c. 268A, sections 2(b), 3(b), 23(b)(2), and 23(b)(3).
