Letter Ruling Public Enforcement Letter 89-5: Charles Smith
c/o Michael McCarthy, Esq.
70 Allen Street
Pittsfield, MA 01201
Dear Mr. Smith:
As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that as the Mayor of Pittsfield, 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 bearing before the Commission.
I. The Facts
1. At all relevant times, you were the Mayor of Pittsfield. and, by virtue of that position, a voting 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 Committee members, to visit its corporate headquarters.
3. You felt that the trip was necessary in order to determine the accuracy of ServiceMaster's representations and what the city would be purchasing were they to accept ServiceMaster's proposal. You allowed ServiceMaster to pay the expenses of the trip so that city funds could be preserved.
4. On Monday, August 11, 1986, you and the Superintendent of Schools met at the school administration building and drove to the Albany airport. You boarded a 5:00 P.M. flight to Chicago, paid for by ServiceMaster at a cost of $540 for each round trip ticket. Upon your arrival in Chicago, you went to dinner at the Ninety Nine Restaurant, which was paid for by ServiceMaster in an amount totaling $261.09 ($52.22 per person). You were then taken to. the Sheraton Naperville Hotel where you were provided with a room at ServiceMaster's expense, costing $74.12.
5. The next morning, five of you had breakfast at the hotel, paid for by ServiceMaster in an amount of $32.66 ($6.53 per person). 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 the end of the day, you went directly to the airport and flew back to Albany, New York.
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, you 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 Superintendent 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 frills" trip. There were no gifts or lavish entertainment. Thus, the only benefits enjoyed by you consisted of the direct payments for your travel, lodging and meals as described above.
11. The Commission finds no corrupt intent on your part in connection with the above-described
Page 393 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 Mayor and, therefore, 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. 265A 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" for such travel would generally constitute a violation of s.3(b) [citations omitted]. This subsidized travel is available to selection committee members precisely for or because of their official acts ....[T]ravel expenses which are paid by the manufacturer would be of substantial value in most, if not all, situations and would violate s.3(b) of the statute [footnotes omitted].
The Commission also made clear in EC-COI-85-5 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 as well as the manufacturers. State employees could exploit this system in order to procure unwarranted privileges. And the public impression that state employees were improperly influenced in their decisions could arise. Manufacturers, on the other hand, may view the quality of the accommodations and accouterments on these trips as more important than the quality of their product.
We would note that G.L. c. 44, s.53 may provide a statutory vehicle by which a private party may pay travel expenses for public officials. This section of the municipal finance law would appear to allow a city to accept grants or gifts of funds from a charitable foundation, private corporation or an individual and, in turn, the city may expend such funds for the specific purpose intended with the approval of the mayor and the board of aldermen. Chapter 44, s.53A also states that such funds shall be deposited with the treasurer of such city 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. This 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.
Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of; and your future compliance with, the conflict of interest law. This matter is now closed. If you have any questions, please contact me at 727-0060.