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Reay Excavation & Trucking, Inc. v. Town of Readfield

Superior Court of Maine, Kennebec

October 16, 2017

REAY EXCAVATION & TRUCKING, INC., Plaintiff
v.
TOWN OF READFIELD, Defendant and CUSHING CONSTRUCTION, LLC, Interested Party

          DECISION AND ORDER

          William R. Stokes, Justice, Superior Court.

         INTRODUCTION AND PROCEDURAL HISTORY

         The matter before the court is the Plaintiffs Complaint against the Town of Readfield brought pursuant to M.R.Civ.P. 80B to overturn the decisions of the Readfield Select Board (a) awarding the Town's Snow and Ice Control Contract from October 1, 2016 through May 1, 2020 to Cushing Construction, LLC, and; (b) refusing to accept or open a bid from the Plaintiff for said contract because of an alleged conflict of interest.

         The Plaintiffs Complaint was filed on September 21, 2016. The Administrative Record was originally filed on October 20, 2016. Also on October 20, 2016, the Plaintiff filed a Motion For Trial and For Order Regarding Future Course of Proceedings in accordance with M.R.Civ.P. 80B(d). The Town opposed the motion. A hearing on the motion was held on April 5, 2017 at which time the court directed the parties to cooperate with each other to augment the administrative record. The court also allowed the Plaintiff to submit an offer of proof "specifically identifying what evidence of bias the Plaintiff is seeking to uncover . . . ."

         The Plaintiff filed its Offer of Proof on April 13, 2017 and an Amended Offer of Proof on May 5, 2017. Also on May 5, 2017 the parties filed a Stipulation of Facts with an augmented administrative record. The Town filed an opposition to the Amended Offer of Proof on May 10, 2017. By agreement of the parties a memory card of several portions/segments of meetings of the Readfield Select Board has been made part of the record. [1]

         In an Order dated May 15, 2017 the court denied the Plaintiffs Motion For Trial and For Order Regarding Future Course of Proceedings, and directed the parties to submit their briefs on the merits. Briefing was completed on August 10, 2017. A hearing on the Plaintiffs Rule 80B appeal was held on September 6, 2017. The matter is now in order for decision.

         FACTS

         The court's review of the augmented Administrative Record, including the Stipulation of Facts and the video clips, shows the following.

         At a meeting of the Readfield Select Board held on July 29, 2015 Lenny Reay of Reay Excavation & Trucking, Inc., the Plaintiff in this action, was appointed as a member of the Readfield Road Committee. Prior to the vote on his appointment, Mr. Reay wanted it known that his son did work for McGee Construction, and that Mr. Reay allowed a McGee Construction vehicle to be parked on his property. At the time, McGee Construction performed the snow and ice control work for the Town of Readfield under a contract that was due to expire on May 1, 2016. Mr. Reay wanted that known so that there would be no concern or suggestion of a conflict of interest.

         The Select Board members uniformly agreed that the situation involving Mr. Reay's son and the latter's work for McGee Construction did not constitute a conflict of interest. One Board member also expressed the view that there would be no conflict of interest if Mr. Reay and his company were to bid to perform work for the town, provided that he made an appropriate disclosure and recused himself from voting on any matter as a member of the Road Committee. (See Video Clip # 2).

         As noted above, McGee Construction had the snow and ice control contract with the town through May 1, 2016. Thus, in the spring of 2016 the Town Manager, Eric Dyer, began planning for putting the new snow and ice control contract out to bid. At the April 28, 2016 Road Committee meeting, the members were told that the Town Manager would "forward information on snow plowing RFP for discussion at next meeting, " scheduled for May 12, 2016. (R. at 136).

         The Road Committee meeting originally scheduled for May 12, 2016, however, was postponed to a later date. The Select Board was scheduled to meet on May 16, 2016 and the Town Manager planned on reviewing the snow plow bid documents with the Select Board at that meeting. In an e-mail dated May 13, 2016 to the members of the Road Committee, the Town Manager included a link to the "Select Board packet" and further wrote:

Although the Road Committee was originally going to review the draft paving and winter maintenance bids before the Select Board, the change in meeting date dictates that the SB will review the [sic] them prior to your meeting next week. However, I wanted to get them to you at the same time so you can review them as well. They are included in the SB packet but I've also attached them here as PDF files so they are easier to read and in color (more relevant to the winter maintenance bid).

(R. at 31).

         On May 16, 2016 Mr. Reay wrote the following-mail to the Select Board, the Road Committee and the Town Manager:

As a road committee member I am really trying to understand what our role is. All these RFP's that are before the select board tonight have not even been looked at by the road committee for a recommendation. In my opinion this snow plowing RPP, that is a draft before the select board, is definitely something that would deter bidders from bidding. This contract is micro managing the contractor in the extreme. The select board has a role of overseeing the contractors, yet this contract eliminates that. If the road committee is not going to be giving recommendations as we are suppose [sic] to, maybe we shouldn't even have a committee. I don't know who's [sic] input was given in the writing of this contract, but as a contractor, I would not expect someone else to decide what my price would be nor what my employees do.
This contract needs to be totally redrafted and the road committee needs to meet prior to drafts going before the select board. If we can't have a full committee to review, if we at least have a quorum the meeting should take prior.
I would hope that the select board will take a very active role in correcting this issue.

(R. at 30).

         Later in the day on May 16, 2016, the Town Manager sent the following e-mail to Mr. Reay and the members of the Select Board:

         Good Afternoon Lenny,

I'd like to request that future concerns be addressed through the appropriate channels before they are sent along to the Select Board. Namely the Committee Chair and myself as appropriate. This is standard expectation and practice that helps streamline communications. For example you might have known that Larry [Perkins, the Road Committee Chair] and I met last week and that Larry requested the meeting change, etc.
I'd also like to know if you plan on bidding on the winter maintenance contract, as this is an important consideration. If you are, our Conflict of Interest Ordinance precludes your involvement in setting the parameters for the contract and bid award.

(Id.).

         The Town Manager sent another e-mail on May 16, 2016 to the members of the Select Board and the Road Committee in which he explained that he had spoken with the Chair of the Road Committee (Mr. Perkins) "about the Select Board reviewing the draft RFPs prior to the RC." He noted that both he and the Road Committee Chair felt that "this was not an issue." He further observed that he would be meeting with the Road Committee later that week. The Town Manager further stated that the winter maintenance draft contract "was based heavily on the prior agreement as well as standard practices." He summarized the proposed changes to the winter maintenance contract and bid documents. He pointed out that the Select Board was "taking a first pass" at the documents and he anticipated that the changes would be subject to further review and comment "from many different groups and individuals." (R. at 32).

         At the May 16, 2016 Select Board meeting, the video of which the court has viewed in its entirety, the Town Manager explained that the bid documents pertaining to the winter maintenance contract were in the initial stages and had not been formally reviewed by the Road Committee. He noted that he had spoken with McGee Construction, which held the recently expired contract for winter maintenance, to receive input as to what worked well and what potential improvements could be made. The Select Board meeting on this subject lasted approximately 40 minutes and involved detailed consideration of the draft documents, with several board members asking questions, seeking clarification and making suggestions and recommendations.

         The Town Manager explained to the Select Board that the winter maintenance contract for Readfield was one of the most expensive costs for the town and that Readfield's costs were significantly higher than neighboring communities. The manager also pointed out that the draft documents would raise a number of questions because he was trying to approach the winter maintenance contract from a different perspective in an effort to better control costs over the multiple year term of the contract.

         The Road Committee met on May 19, 2016. Both the Town Manager and Mr. Reay were in attendance. The minutes of that meeting reflect the following:

Reviewed draft RFP for snowplowing contract. Eric questions if Lenny should provide guidance if he is also going to bid on the contract. Several members expressed desire to hear Lenny's comments because of his experience. Lenny said he will not bid on the snow removal contract.

(R. at 45).

         The minutes further reflect that Mr. Reay fully participated in the meeting and made suggestions for the improvement of the RFP. Although it is not entirely clear from the administrative record, it is apparent that there was some type of off-the-record exchange involving the Town Manager and Mr. Reay. This is made obvious by a May 20, 2016 email from Town Manager Eric Dyer to the Chair of the Road Committee ...


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