Settlement  In the Matter of George Cunningham

Date:	05/06/1982
Organization:	State Ethics Commission
Docket Number:	154

Disposition Agreement

This Agreement is entered into between the State Ethics Commission ("Commission") ad George Cunningham ("Mr. Cunningham") pursuant to Section 11 of the Commission's Procedures Covering the Initiation and Conduct of Preliminary Inquiries and Investigations. The parties agree that upon its execution this Agreement shall constitute a final order of the Commission, enforceable in the Superior Court of the Commonwealth, pursuant to Section 4(d) of G.L. c. 268B.

On November 10, 1981, the Commission, pursuant to s.4 of G.L. c. 268B, initiated a Preliminary Inquiry into possible violations of the Conflict of Interest Law, G.L. c. 268A, involving: (a) Mr. Cunningham's role as a member of the Billerica Conservation Commission ("BCC"), in the 1981 award of a 

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BCC contract to the J&G Construction Company; and (b) Mr. Cunningham's financial interest in a construction company which may have done subcontract work on this same BCC contract. The Commission has concluded its Inquiry into Mr. Cunningham's involvement in the matters set forth in this Agreement, and makes the following findings of fact and conclusions of law to which the parties hereto agree:

1. Mr. Cunningham was a member of the BCC from December, 1975, to November 18, 1981, when he resigned from the position.

 2. At all times relevant to this Agreement, Mr. Cunningham was the owner of the Greenbriar Construction Company, a sole proprietorship. 

3. On September 27, 1980, Mr. Cunningham married Caren Carbone, who was at that time, and at all times relevant herein, a partner in the J&G Construction Company (J&G). J&G was founded in the Spring of 1980, and as of December 31,1980, had not entered into any contracts under that name. 

4. During the period from August 27, 1980, through March 4,1981, Mr. Cunningham participated in BCC discussions and decisions relative to the award of a BCC contract to J&G for the removal of sediment from the Nuttings Lake disposal basin. The original contract was awarded to Middlesex Disposal Services, Inc. Middlesex Disposal defaulted in the performance of its agreement with BCC. On March 4, 1981, Mr. Cunningham moved, and the BCC voted to award this contract to J&G. The BCC also decided at that meeting not to require J&G to immediately post a $10,000 cash bond as would otherwise have been required.  

5. Subsequent to the award of this BCC contract to J&G, Mr. Cunningham acted on J&G's behalf to negotiate the rental by J&G of trucks and other heavy equipment from Vinal Construction Company, for use on the BCC contract. During the period from approximately May 4 - June 19,1981, Mr. Cunningham was frequently at the job site supervising the work for J&G and signing, on J&G's behalf, trucking slips which acknowledged the number of loads of sediment removed by Vinal's equipment from the site. Vinal's bills for the rental of its equipment to J&G were sent to George Cunningham at his mailing address in Billerica. 

6. Also during the period of this contract, and commencing on or about May 15, 1981, Greenbriar performed subcontract work on this BCC contract at J&G's request. Payments totaling $5,387.77 were made by J&G to Greenbriar for this work. 

7. On or about June 19, 1981, and continuing through July 14, 1981, Greenbriar subcontracted with J&G to remove gravel from the Nuttings Lake basin. J&G had received permission from the BCC to remove gravel from the basin floor in order to increase its capacity. Pursuant to its agreement with J&G, Greenbriar removed gravel from the Nuttings Lake basin and sold it to the Atom Contracting Corporation (Atom) for $20,855. Greenbriar paid J&G $5,000 and incurred substantial excavation and hauling expenses in the removal of the gravel. The BCC was not advised by J&G of the subcontract agreement with Greenbriar regarding the gravel. 

8. By participating as a member of the BCC in the award of a contract to J&G, at a time when his wife was a partner in that company, Mr. Cunningham violated s.19 of G.L. c. 268A. 

9. By performing work through his company, Greenbriar, on the BCC contract, as a subcontractor to J&G, Mr. Cunningham had a financial interest in a BCC contract in violation of s.20 of G.L. c. 268A. 

WHEREFORE, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings brought on its behalf pursuant to G.L. c. 268B, on the basis of the following terms and conditions hereby made and agreed to by Mr. Cunninghham: 

1. That Mr. Cunningham will pay to the State Ethics Commission the sum of $2,000 as civil penalty for violating s.s.19 and 20 of G.L. c. 268A; and 

2. That Mr. Cunningham waives all rights to contest the findings of fact and conclusions of law in this or any related judicial or administrative proceedings in which the State Ethics Commission is a party.