Punishment For Some But Not Others

...employees of  Danvers, Franklin, Natick, Newburyport, Salem, Southampton, and Sudbury faced fines..the company giving gifts did not...

Reprinted with Permission From Contrarian Boston (https://scottvanvoorhis.substack.com)

By Colman M. Herman

The fining of several Massachusetts municipal waterworks employees by the State Ethics Commission for accepting lavish gifts from vendors was reported last spring by local media outlets. The gifts included all-expense-paid ski trips to Vermont and Maine, pricey steakhouse dinners, and tickets to Celtics and Red Sox games.

Left unaddressed, however, was the silence of the Ethics Commission regarding the identities of the vendors that gave out the gratuities, as well as why the vendors were not fined, even though there is a comprehensive conflict of interest statute in Massachusetts.

A reporter determined the identities of the vendors; they are the Neptune Technology Group located in Alabama and its sole authorized New England distributor, Sudbury-based Ti-Sales.

Neither Neptune nor Ti-Sales was fined by the Ethics Commission because the agency was unable to demonstrate that an explicit quid pro quo had occurred, as required by a federal case called U.S. v. Sun-Diamond, an agricultural trade association.

Photo by Alex Munsell on Unsplash

In Sun-Diamond, the Supreme Court held that in order to sustain a conviction for federal bribery there must be a clear quid pro quo link between the gratuity received and the performance of a specific past, present, or future “official act.” The court found no such connection existed.

Due to strict confidentiality restrictions imposed on the Ethics Commission by statute, a commission spokesperson would not confirm whether Sun Diamond prevented the commission from prosecuting Ti-Sales and Neptune. But a review of public records reveals that the commission stopped going after companies giving gifts to public officials and employees around the time of the 1999 Sun Diamond ruling.

Delaney Marsco, director of ethics at the Campaign Legal Center, a nonprofit government watchdog in Washington, DC, believes that Massachusetts needs to pass a law that would allow the Ethics Commission to discipline companies for acts such as those committed by the likes of Ti-Sales and Neptune.

Delaney Marsco, director of ethics at the Campaign Legal Center

“I think absolutely anything that can be done legislatively in Massachusetts and elsewhere that will overcome Sun-Diamond should be done as long as it can pass constitutional muster,” she said.

If Massachusetts were to pass such a statute, Jack Beermann, a constitutional law professor at the Boston University School of Law, does not see a conflict with the Constitution.

“There is no impediment I know of that would prevent the legislature from passing a clearer statute that did not require the gift to be related to any official act,” he said. “The statute could just straight up prohibit gift-giving to government officials and employees by anyone who does business with the government. Just eliminate any action, past, present, or future requirement.”

The president of Ti-Sales, Martin Mazzella, was asked in an interview why his company gave out the gifts to the municipal workers. “There really was no intent to influence any decisions whatsoever across any of our events that we sponsor,” he said. “I can guarantee you that.”

Asked to then explain why he gave the workers the gratuities, Mazzella said, “I’m not really inclined to answer that question. There’s really no answer to that question.”

And when Mazzella was further asked if he could understand why the public might perceive the giving of gifts as an effort to influence the municipal workers to purchase his products, he sidestepped the question.

“These guys work hard to make sure when you turn the tap on every morning that the water that comes out of it is safe to drink and is not going to make you sick like it would in, you know, third-world countries,” he said. “And that’s a better story you should write — how these dedicated public works employees for very little pay make sure that all the shit that needs to get done in a town or city gets done.”

Mazzella said he was not impressed at all with the Ethics Commission’s handling of the cases. “I don’t think they got a true understanding of both the facts and the situations,” he said.

He also noted that Ti-Sales no longer gives out any gratuities to municipal workers, and his own workers have taken the Ethics Commission’s online training on the conflict-of-interest law.

Mazzella’s lawyer, Richard Kerrigan, followed up two weeks later with an email saying that the gift-giving that Ti-Sales engaged in was between friends.

“The water industry is different from other industries that interact with local governments because Ti-Sales workers deal with water district employees repeatedly over the years,” he said. “These frequent interactions lead to genuine friendships forming between the company and public employees.”

Marsco, the ethicist with the Campaign Legal Center, questioned this argument.

“It is not uncommon for friendships to be used as a pretext for giving gifts that are actually illegal and certainly raise red flags,” she said. “It can be a red herring. It’s the same defense used by Supreme Court Justice Clarence Thomas for accepting lavish gifts from billionaire Harlan Crow.”

As to the water meter industry being different from other industries, Marsco said that if the Massachusetts Legislature wanted to make distinctions among industries for the purpose of gift-giving by companies it would have codified it into the ethics law.

Neptune, the manufacturer of the water meters, did not respond to multiple requests for comment.

The pricey gifts were given out by the vendors to seven employees working for seven municipalities between 2018 and 2022. They included up to as many as four, three-day ski trips to Vermont and Maine for each of the workers, which included lift tickets, snowmobile rentals, lodging, and meals, sometimes accompanied by a spouse or a friend; tickets to Celtics and Red Sox games; dinners costing up to $180 a person; rooftop drinks; and golfing green fees.

The Ethics Commission was able to fine the seven gift recipients, which ranged from $6,000 to $18,000, because they all violated a state ethics law that precludes Massachusetts public officials and public employees from accepting gifts worth $50 or more given to them because of their official position. A quid pro quo did not have to be demonstrated.

The offending employees worked for the municipalities of Danvers, Franklin, Natick, Newburyport, Salem, Southampton, and Sudbury, and had purchase authority or could greatly influence the process. Most of them had completed the Ethic’s Commission's online training on the conflict-of-interest law before they accepted the gifts.

Some of the cited employees are still on the job, others have left, one of whom went to work for another municipality.

Of the seven offenders, Vincent Roy, the executive director of the Sudbury Water District, got hit with the largest fine — $18,000. Roy was the recipient of three free all-expense-paid ski trips to Vermont and Maine; four dinners separate from the ski trips costing up to $182 each; rooftop drinks; Red Sox tickets to a Yankees game; and golfing green fees.

Roy took the illegal gifts even though ironically he had “regularly” completed the Ethics Commission’s online training on the conflict-of-interest law. Of his behavior, Roy said in an interview, “It was stupidity, it really was.”

Also ironically, Thomas Cusick, the water treatment superintendent in Newburyport who was fined $13,000, says on his Linkedin page: “Accountability for one’s actions must be evaluated to foster an efficient workforce.”

When Scott Harshbarger was attorney general of Massachusetts, he called in the Ethics Commission to give a presentation on the ethics law to his staff. Discussion ensued on how to determine the value of a gift. When the discussion was dragging on, Harshbarger finally stood up and said: “I’ll make this easy. You take nothing from anybody. Period.”