Settlement  Disposition Agreement in the Matter of Robert O'Brien

Date:	07/28/2022
Organization:	State Ethics Commission
Docket Number:	22-0001
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Disposition Agreement

The State Ethics Commission (“Commission”) and Respondent Robert O’Brien enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j). 

On October 18, 2019, pursuant to G.L. c. 268B § 4(a), the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by O’Brien. On September 15, 2021, the Commission concluded its inquiry and found reasonable cause to believe that O’Brien violated G.L. c. 268A, §§ 17(a), 19, 20, and 23(b)(2)(ii).

The Commission and O’Brien now agree to the following findings of fact and conclusions of law:

Findings of Fact

1. In October 2015, the Town of Sandisfield (“Town” or “Sandisfield”) was in need of a Highway Road Superintendent. 
2. At the time, O’Brien, who was doing business as P&R Construction (“P&R”), was a provider of snowplowing services to Sandisfield. At all relevant times, O’Brien was the sole owner of P&R.
3. On October 26, 2015, O’Brien was appointed by the Sandisfield Board of Selectmen (“Board of Selectmen”) as the Town’s Highway Road Superintendent on an interim basis.
4. O’Brien was appointed by the Board of Selectmen as Sandisfield’s Highway Road Superintendent on a permanent basis on January 25, 2016.
5. O’Brien was at all relevant times the Sandisfield Highway Road Superintendent and a Sandisfield municipal employee.

P&R Snowplowing and Equipment Rental Business with the Town

6. After O’Brien became Highway Road Superintendent, Sandisfield continued to pay P&R for snowplowing services and began paying P&R for equipment rental services.
7. Sandisfield and P&R did not have a contract relating to equipment rental services prior to October 2015.
8. As Highway Road Superintendent, O’Brien decided when to hire P&R for snowplowing and equipment rental services.
9. Between October 26, 2015, and April 30, 2018, O’Brien, as Highway Road Superintendent, decided to hire or otherwise participated in hiring P&R for snowplowing services on over 70 occasions and for equipment on over 20 occasions. P&R was paid a total of approximately $55,300 by Sandisfield for these services.

Excavator Rentals

10. In May 2017, the Sandisfield Highway Department (“Highway Department” or “Department”) sought to rent an excavator as the Town did not have an operable excavator. Prior thereto, O’Brien began using P&R’s excavator for Town work.
11. O’Brien, as Highway Road Superintendent, solicited quotes for the excavator rental.
12. Three quotes for the excavator rental, each dated May 11, 2017, including one from P&R, were submitted to the Highway Department.
13. O’Brien submitted P&R’s quote after reading the two other bidders’ quotes.
14. P&R’s quote of $1,150 per week/$4,000 per month for the excavator rental, signed by O’Brien as or for P&R, was the lowest of the three quotes.
15. O’Brien, as Highway Road Superintendent, decided that the Highway Department would rent P&R’s excavator.
16. Between May 2017, and December 2017, Sandisfield paid P&R approximately $20,000 for renting the excavator.

O’Brien’s Submission of P&R Invoices and Approval of Highway Department Warrants for Payment

17. As Highway Road Superintendent, O’Brien each week approved the Highway Department’s weekly warrants for submission to the Board Of Selectmen for payment.
18. O’Brien submitted P&R invoices to the Highway Department.
19. After compiling the weekly warrants and accompanying invoices, the Department’s secretary gave them to O’Brien for his approval as Highway Road Superintendent.
20. O’Brien, as Highway Road Superintendent, signed each warrant and invoice that included payment to P&R.
21. The Department’s secretary then submitted the documents to the Board of Selectmen for payment.
22. Between November 23, 2015, and April 2, 2018, O’Brien approved over 40 Highway Department warrants that included payments to P&R totaling over $50,000. These Town payments to P&R included approximately $30,000 for equipment rental services, including rental of an excavator, a paver, and a steel plate, and approximately $22,000 for snowplowing services.

O’Brien’s Work on P&R Paving Jobs

23. On August 28, 2018, and August 29, 2018, O’Brien, acting for or as P&R, paved the driveway of a private residence.
24. On September 7, 2018, O’Brien, acting for or as P&R, paved the driveway of A&M Auto Repair (“A&M”), a private business.
25. O’Brien ordered asphalt for the two P&R private paving jobs in 2018 from Century Aggregates, Inc., and charged the $1783.33 cost of the asphalt to the Town’s account.
26. O’Brien hired Irish Trucking to haul the asphalt for the two P&R private paving jobs in 2018 and told the owner of Irish Trucking to charge the Town for the hauling.
27. On both August 28, 2018, and August 29, 2018, Irish Trucking’s driver met O’Brien at the Sandisfield Highway Department garage and O’Brien had the driver follow him to the private home where O’Brien would pave the driveway as or for P&R.
28. On September 7, 2018, Irish Trucking delivered asphalt to A&M, which was used by O’Brien, acting as or for P&R, to pave the private business’ driveway.
29. As directed by O’Brien, Irish Trucking billed Sandisfield $1,657.60 for delivering the asphalt used by O’Brien and P&R to privately pave A&M’s driveway.
30. The Irish Trucking invoices were amended to charge P&R Construction for the asphalt deliveries. O’Brien paid Irish Trucking for the asphalt deliveries.
31. O’Brien paid Century Aggregates for the cost of the asphalt purchased for P&R’s private jobs. The Town did not pay either the asphalt or hauling invoices.

Erosion Control Subcontract

32. In 2017, the Tennessee Gas Pipeline (“TGP”) expanded and caused damage to certain Sandisfield town roads. TGP informally agreed with the Town to repair Cold Spring Road and hired Henkels & McCoy, Inc., (“H&M”) to oversee the work. H&M in turn contracted with All State Asphalt, Inc. (“All State”) to chip seal Cold Spring Road in 2018.

33. The Town actively observed the progress of the work. O’Brien, as Highway Road Superintendent, was charged by the Town with monitoring the project.
34. In or around summer 2018, O’Brien, as Highway Road Superintendent, met with All State representative, Huck House, to discuss the Cold Spring Road repair. At the end of the meeting, House told O’Brien that All State would have to subcontract the erosion control work for the project. O’Brien responded that P&R could do the work.
35. A P&R proposal for the erosion control work was submitted to All State on August 13, 2018.
36. A written contract between P&R and All State was signed on September 13, 2018. Under the contract, All State was to pay P&R $16,000 to install 2,200 linear feet of wattles (straw-filled synthetic sacks used for erosion control) on Cold Spring Road.
37. A P&R invoice, dated September 20, 2018, was submitted to All State in the amount of $16,000 for P&R’s labor in performing the erosion control work on Cold Spring Road.

Conclusions of Law

38. As Sandisfield’s interim and permanent Highway Road Superintendent, O’Brien was a municipal employee as that term is defined in G.L. c. 268A, § 1(g).

Section 19 Violations

39. General Laws chapter 268A, § 19 prohibits a municipal employee from participating as such an employee in a particular matter in which to his knowledge he has a financial interest.

Excavator Rentals from P&R

40. The Highway Department’s decision to rent an excavator in and after May 2017, was a particular matter.

41. O’Brien participated as Highway Road Superintendent in the excavator rental particular matter by soliciting and reviewing all three excavator rental quotes, each dated May 11, 2017, including the low bid quote submitted by P&R, and then choosing to have the Highway Department rent from P&R.
42. O’Brien knew at the time he participated that he had a financial interest in the particular matter of the excavator rental because he intended to submit and did submit a bid on behalf of his private business, P&R, for the excavator rental.
43. Therefore, when O’Brien as Highway Road Superintendent chose to have the Highway Department rent an excavator from P&R in May 2017 and thereafter, O’Brien participated as a municipal employee in a particular matter in which to his knowledge he had a financial interest. Each time he did so, O’Brien violated G.L. c. 268A, § 19.

Decisions to Hire P&R

44. Each of the decisions O’Brien made to hire and authorize payment to P&R for snowplowing and/or equipment rental services between October 26, 2015, and April 30, 2018, were particular matters.

45. O’Brien knew he had a financial interest in each of these particular matters because he was the owner of, and did business as, P&R.

46. As Highway Road Superintendent, O’Brien participated in each of these particular matters by repeatedly hiring P&R for snowplowing and equipment rental services.

47. Therefore, by as Highway Road Superintendent, repeatedly authorizing and approving the hiring of P&R to provide snowplowing and equipment rental services to the Town, O’Brien repeatedly participated as a municipal employee in particular matters in which to his knowledge he had a financial interest. Each time he did so, O’Brien violated G.L. c. 268A, § 19.

Approving Warrants for Payments to P&R for Submission to BOS

48. Each of the decisions O’Brien made between November 23, 2015, and April 2, 2018, to approve, as Highway Road Superintendent, warrants for payments to P&R for submission to the Board of Selectmen was a particular matter.

49. O’Brien knew he had a financial interest in each decision to approve payments to P&R.

50. O’Brien, as Highway Road Superintendent, participated in the particular matters by signing the warrants and invoices listing payments to P&R.

51. Therefore, by as Highway Road Superintendent repeatedly approving, signing, and submitting pay warrants to the Town, for services provided by P&R, O’Brien repeatedly participated as a municipal employee in particular matters in which to his knowledge he had a financial interest. Each time he did so, O’Brien violated G.L. c. 268A, § 19.

Section 23(b)(2)(ii) Violations

52. General Laws chapter 268A, § 23(b)(2)(ii) prohibits a public employee from knowingly, or with reason to know, using his official position to secure for himself or others an unwarranted privilege of substantial value that is not properly available to similarly situated individuals.

Excavator Bids and Contract

53. O’Brien, as a public employee, knowingly or with reason to know solicited and/or reviewed excavator rental bids in May 2017 when he intended to submit a bid for an excavator rental for his private business, P&R.

54. The opportunity to participate in soliciting and/or reviewing competing excavator rental bids prior to submitting a bid for his private business, was an unwarranted privilege.

55. The unwarranted privilege was of substantial value because it allowed O’Brien to ensure that P&R submitted the lowest bid and was awarded the contract which paid $1,150 per week and/or $4,000 per month to P&R.

56. The unwarranted privilege was not available to similarly situated individuals.

57. O’Brien used his position as Highway Road Superintendent secure an unwarranted privilege, namely, the excavator rental contract.

58. Therefore, by, as Highway Road Superintendent, reviewing other bidders’ excavator rental bids prior to submitting P&R’s bid, O’Brien knowingly or with reason to know used his official position to ensure P&R was awarded the excavator rental contract, which was an unwarranted privilege of substantial value, not available to similarly situated individuals. In so doing, O’Brien violated G.L. c. 268A, § 23(b)(2)(ii).

Private P&R Purchases Charged to the Town

59. In or about August 2018, and September 2018, O’Brien, as Highway Road Superintendent, knowingly or with reason to know charged or attempted to charge the Town for materials and services, including asphalt and trucking delivery services to be used in P&R’s private jobs.

60. The ability to charge the cost of asphalt and trucking delivery services for P&R’s private jobs to the Town’s account was an unwarranted privilege.

61. The unwarranted privilege was of substantial value.

62. The unwarranted privilege was not properly available to similarly situated individuals.

63. Therefore, by repeatedly using his position as Highway Road Superintendent to use Town accounts to order materials and services for use by P&R on its private jobs, O’Brien knowingly or with reason to know used or attempted to use his official position to secure for himself and/or P&R an unwarranted privilege of substantial value, not properly available to similarly situated individuals. Each time he did so, O’Brien violated G.L. c. 268A, § 23(b)(2)(ii).

Soliciting Erosion Control Subcontract

64. O’Brien, as Highway Road Superintendent, solicited an erosion control subcontract for his private company from All State when he met with All State regarding the Cold Spring Road project in or around the Summer of 2018.

65. Soliciting and obtaining a private job for one’s private company while acting in one’s public capacity is an unwarranted privilege.

66. The unwarranted privilege was of substantial value as the erosion control subcontract was worth $16,000.

67. The unwarranted privilege was not available to similarly situated individuals.

68. Therefore, O’Brien used his position as Highway Road Superintendent to obtain an erosion control subcontract for P&R on the Cold Spring Road project, thereby knowingly or with reason to know using his official position to secure for himself and/or others an unwarranted privilege of substantial value not properly available to similarly situated individuals. In so doing, O’Brien violated G.L. c. 268A, § 23(b)(2)(ii).

Section 17(a) Violation

69. General Laws chapter 268A, § 17(a) prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receiving or requesting compensation from anyone other than the municipality in relation to any particular matter in which the same municipality is a party or has a direct and substantial interest.

70. As the sole owner of P&R, O’Brien directly or indirectly received compensation from All State to perform the erosion control subcontract on the Cold Spring Road project in 2018.

71. Sandisfield’s decision to allow TGP to repair Cold Spring Road was a particular matter.

72. The matter was of direct and substantial interest to the Town, as the Town is responsible for maintaining the road.

73. Receiving compensation from All State to perform the erosion control subcontract for the Cold Spring Road project was otherwise than as provided by law for the proper discharge of O’Brien’s official duties as Highway Road Superintendent.

74. Therefore, by receiving compensation from All State in relation to P&R’s completion of the erosion control subcontract on the Cold Spring Road project, O’Brien otherwise than as provided by law for the proper discharge of official duties directly or indirectly received compensation from someone other than the Town in relation to a particular matter in which the same Town is a party or has a direct and substantial interest. In so doing, O’Brien violated G.L. c. 268A, § 17(a).

Section 20 Violations

75. General Laws chapter 268A § 20 prohibits a municipal employee from, directly or indirectly, having a financial interest in a contract made by a municipal agency of the same town, in which the town is an interested party, of which financial interest he has knowledge or has reason to know.

76. Each equipment rental to Sandisfield by P&R between October 26, 2015, and April 30, 2018, was a contract made by a Sandisfield municipal agency, the Highway Department, in which the Town was an interested party.

77. As the sole owner of P&R, O’Brien had a financial interest in these contracts of which he had knowledge.

78. Therefore, by while Sandisfield Highway Road Superintendent, repeatedly renting equipment to the Town through his business P&R, O’Brien knowingly repeatedly had a direct or indirect financial interest in contracts made by a municipal agency of the Town, in which the Town was an interested party. Each time he did so, O’Brien violated G.L. c. 268A § 20.

Disposition

In view of the foregoing violations of G.L. c. 268A by O’Brien, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the following terms and conditions agreed to by O’Brien:

1. that O’Brien pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $50,000 as a civil penalty for violating G.L. c. 268A, §§ 17(a), 19, 20, and 23(b)(2)(ii); and
2. that O’Brien waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Disposition Agreement.

By signing below, O’Brien acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to its terms and conditions.