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

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CIVIL ACTION

DOCKET NO­ AP-2016-5:f-

REAY EXCAVATION &

TRUCKING, INC.,

Plaintiff

DECISION AND ORDER

V.

TOWN OF READFIELD,

Defendant

and

CUSHING CONSTRUCTION, LLC.,

Interested Party

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 Plaintiff's 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, 201 7. Also on May 5, 201 7

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, 201 7 the court denied the

Plaintiff's Motion For Trial and For Order Regarding Future

Course of Proceedings, and directed the parties to submit their

1

The memory card contains four video clips, which the court has viewed. The four clips

are: (1) May 16, 2016 Select Board meeting with Town Manager Eric Dyer; (2) July 29,

2015 Select Board meeting appointing Lenny Reay to the Road Committee; (3) August

22, 2016 public comment portion of the Select Board meeting on that date, and; (4)

August 22, 2016 Select Board meeting at which Cushing Construction LLC. was awarded

the contract.

2

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 lmown 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

3

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

4

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 RFP, 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).

5

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 fu1iher stated that the winter

6

maintenance draft contract "was based heavily on the pnor

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

7

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 and to Tom Dunham, a

Select Board member who had attended the Road Committee

meeting. The e-mail reads as follows:

Good morning Larry and Tom,

8

I had apologized to Lenny at the meeting but I also

want to apologize directly to the both of you for my

comment last night. I regret very much dropping to that

level and suggesting that I wouldn't listen to Lenny

because he said he wouldn't work with me because he

didn't like me. My response was certainly not what I

expect from myself in those situations.

I was concerned about the integrity of the process and

following our Conflict of Interest Ordinance. When he

said that he would not be bidding those concerns were

resolved. I just wish he had said so sooner, or

responded to the email I had sent earlier. Doing so

could have entirely avoided the flare-up around that

issue, but I again want to apologize for my response to

it.

(R. at 34).

The Road Committee met again on June 23, 2016. Mr. Reay

and the Town Manager attended. The minutes of that meeting

reflect that the "Committee reviewed in detail Draft 2 for snow

plow contract." Another meeting was scheduled for July 6, 2016

for the Committee "to review paving bids and to review final

plowing RFP." (R. at 46).

On the afternoon of July 6, 2016, the Town Manager sent the

members of the Road Committee Draft 3 of the winter snow and

ice control RFP, which incorporated changes that "directly reflect

recommendations from the last RC meeting." (R. at 35). The

Road Committee met as scheduled at 6 :00 pm ort July 6, 2016.

Both Mr. Reay and the Town Manager were in attendance. The

9

minutes of that meeting indicate that the Committee engaged in a

"[l]engthy review of the recently issued draft RFP for snow and ice

control - next 4 years." The Road Committee "approved the new

changes to the snow plowing RFP," with Mr. Reay abstaining. (R.

at 47).

Although not reflected in the minutes of the Road Committee

meeting of July 6, 2016, it appears that the issue of a potential

conflict of interest arising, if Mr. Reay submitted a bid on the

snowplowing contract, was discussed at the meeting. This is made

apparent in an a-mail from the Town Manager on July 7, 2016 to

the Road Committee, and others, that was a follow-up "in response

to questions and discussions at the Road Committee meeting last

night as they relate to the Snow and Ice Control Contract." With

respect to the conflict of interest question, Mr. Dyer wrote as

follows:

It was again raised whether Lenny Reay or someone in

his family could bid on the contract given Lenny's

significant involvement in developing the contract. As

noted before, our Conflict of Interest and Recall

Ordinance does not allow for this. It is also strongly

discouraged by the Maine Municipal Association and is

not a good governance practice. I have attached our

Ordinance for reference. Maintaining the integrity of

the contract and bidding process is critical in perception

just as much in reality and our Ordinance ensures that it

is. It is also not optional.

10

(R. at 39) (italics in original).

The record does not provide a date when the Snow and Ice

Control Pre-bid Meeting was held, but it does reflect that Mr. Reay

attended that meeting on behalf on his company. (R. at 49).

Moreover, on July 30, 2016, Mr. Reay asked the Chair of the Road

Committee to request the Select Board to obtain a ruling from the

Maine Municipal Association as to whether he would be in a

conflict of interest situation if he submitted a bid for the snow

plowing contract. (R. at 42). In an e-mail dated August 1, 2016

the Chair of the Road Committee obliged Mr. Reay by asking the

Select Board to "seek a ruling from MMA as to whether Lenny

Reay would be in a conflict of interest per the town ordinance if

his company submits a bid on the snow and ice control contract

RFP." The Chair pointed out that bids on the winter

maintenance/snowplowing contract were due on August 11, 2016.

(R. at 41).

In an e-mail dated August 3, 2016, the Town Manager made

his position clear on the question of whether Mr. Reay could

submit a bid for the Snow and Ice Control contract. He informed

Mr. Reay as follows:

Good morning Lenny,

I am writing to address the conflict of interest that

exists around the Snow and Ice Control Contract in

11

order to give you clear direction and timely

information. I do not want you to have any surprises or

unnecessarily waste time and financial resources in

putting together a bid.

Although your recent communications have been

directed to the Select Board they do not have the ability

to make decisions outside of public meetings.

Given the conflict of interest that exists and the need to

maintain the integrity of the bidding process, I will not

be accepting a bid from your company or immediate

family members for the Snow and Ice Control Contract.

(R. at 43).

On August 8, 2016, a regular meeting of the Readfield Select

2

Board was held. The minutes of that meeting address the conflict

of interest issue as it pertained to Mr. Reay at two points in the

meeting. In the section of the minutes entitled "Public

Communications," the minutes state that Mr. Reay spoke to the

Select Board and wanted to know if a bid from him would be

accepted. The Town Manager "expressed his concerns regarding

the conflict of interest." The Chair of the Select Board "addressed

the concern and let him [Mr. Reay] know that the process has been

determined and this is not on the agenda tonight." 3 (R. at 51 ).

2

As far as the court can tell, the August 8, 2016 Select Board meeting was not included

in the video clips on the memory card submitted as part of the record in this case.

3

It is not clear to the court whether this is a typographical error since the question of

whether there was a conflict of interest if Mr. Reay submitted a bid on the Snow and Ice

Control Contract was considered and voted on by the Select Board later in the meeting of

August 8, 2016.

12

Nevertheless, later in the meeting of August 8, 2016 the

subject of the Conflict of Interest Ordinance was discussed. Mr.

Dyer "spoke as the Town Manager and Road Committee

Manager," and gave his view on the matter. Mr. Reay spoke again

"and wanted to know what he contributed to make his bid not

acceptable." Ultimately, a motion was made and seconded "to

back up the Road Commissioner 4 [sic] with his decision that there

is a conflict of interest." The motion passed by a 4 to 1 vote of the

Select Board. (R. at 53).

The bid opening for the Snow and Ice Control contract was

scheduled for 3:00 p.m. on August 11, 2016. At 11:00 a.m. that

day, the Chair of the Road Committee (Larry Perkins) received a

letter from Lenny Reay resigning immediately from the Road

Committee. (R. at 63). Mr. Perkins promptly notified the Select

Board of this development. (R. at 44). When the Town Manager

became aware of Mr. Reay's resignation, he sent the following e­

mail to the Select Board with a copy to Mr. Reay:

Hi Larry,

Thank you. I am sorry to see this. As I've stated

multiple times in the past, Lenny's involvement with

the Road Committee is not an inherent conflict and his

specialized knowledge is an asset to the work of that

committee. The conflict came about because of his

4

The court assumes that the "Road Commissioner" mentioned in the minutes refers to the

Town Manager in his capacity as Road Committee Manager.

13

significant involvement with the development of a

potentially 1.25 Million dollar snow and ice control

contract under a false pretense. If he had recused

himself from the contract development entirely, or

honored his statement that he would not bid then no

conflict would exist. He had this information prior to

the contract development process and chose to ignore it.

The issue is not and never has been his membership on

the Road Committee, nor is it related to politics or

vendettas. The issue is his repeated choice to willfully

disregard a Town Ordinance and nearly universal

ethical standards around contract development and

bidding.

To be clear on a core issue, Lenny's resignation does

not resolve his conflict of interest. A bid will still not

be accepted from Reay Excavation for the contract that

he played a significant role in developing.

(R. at 44).

The bids were opened at 3:00 p.m. on August 11, 2016. Bids

were received and opened from McGee Construction and Cushing

Construction. The minutes of the Road Committee during the bid

opening state: "Reay Excavation submitted a bid but the Town

Manager refused to open it as non-responsive due to perceived

conflict of interest." 5 The Committee voted 3-0-1 (Mr. Reay

6

abstained) to recommend selection of Cushing's bid. (R. at 55).

5

It was suggested that the bid from the Plaintiff be received and stored "for possible legal

defense." The Road Committee minutes reflect that: "Eric says Town Counsel told him

to not open the bid but simply return to Reays." (R. at 55).

6

Although Mr. Reay' s letter of resignation stated that he was resigning from the Road

Committee "immediately" he apparently attended the Road Committee meeting later in

14

Later in the day on August 11, Sue Reay, Lenny's wife,

wrote an e-mail to the Town Manager asking that he "give me the

significant input that you feel my husband had in this RFP." The

Town Manager replied the next day, stating "[t]his question has

been addressed previously." Mrs. Reay wrote again on August 12,

2016 disputing the Town Manager's assertion that Lenny Reay had

"significant" involvement in the RFP development process, and

asking "[ e]xactly what did he put on the table that was

incorporated into the contract?" The Town Manager responded:

"You have my answer." (R. at 37).

The Road Committee met again on August 16, 2016. Mr.

Reay and the Town Manager attended. The Committee voted to

rescind its vote at its August 11, 2016 meeting. Further discussion

about the bids submitted by McGee Construction and Cushing

Construction followed. The Committee voted to recommend

Cushing Construction to the Select Board as to certain items in the

RFP, 7 and further voted to recommend that the town negotiate a

reduced price as to certain items in the RFP "based upon the town

providing the salt." (R. at 48).

The minutes of the Road Committee meeting of August 16,

2016 state that all members of the Committee believed that the bid

the day of August 11, 2016 and is identified as abstaining from the Road Committee vote

on that day.

7

The minutes of this meeting again state that Mr. Reay abstained from voting on this

particular item.

15

from Reay Excavation should have been accepted. Moreover, the

Committee voted unanimously to "recommend that our selectboard

seek a ruling from MMA if the Reay' s bid would have been

'conflict of interest' as defined by Town ordinances." (Id.).

On August 22, 2016, the Readfield Select Board held another

regular meeting. The Select Board voted to formally accept Mr.

Reay's resignation from the Road Committee. The award of the

Snow and Ice Control Contract was also considered. The issue of

the refusal to accept the Plaintiffs bid was discussed, as well as

other aspects of the two bids that were opened. Specifically, the

Select Board discussed and heard comments on the bid process; the

treatment of Reay Excavation & Trucking and Lenny Reay in

particular, and; the town's Conflict of Interest Ordinance as it

pertained to the acceptance or rejection of the bid from the

Plaintiff. From the record, including the video clips of the Select

Board's meeting on August 22, 2016, it is apparent to the court that

several people had strong feelings about these issues.

The Select Board voted 4 to 1 to accept the bid from Cushing

Construction as recommend by the Road Committee. (R. at 58).

Toward the end of the meeting, a motion was made to seek legal

advice "on the Conflict of Interest and issues that have happened

with Reay Construction." The motion failed on a vote of 1 to 4.

(R. at 59).

16

At its regular meeting held on September 6, 2016 the

Readfield Select Board voted 4 to 1 to approve the Snow and Ice

Control Contract Amendment with Cushing Construction. (R. at

61). The Complaint in this matter was filed on September 21,

2016. At the hearing held on April 5, 2017 on the Plaintiffs

Motion For Trial and For Order Regarding Future Course of

Proceedings, there was discussion between counsel for the parties

about the existence of an "opinion" from a staff attorney with

Maine Municipal Association on the subject of a potential conflict

of interest, if a member of the Readfield Road Com1nittee

submitted a bid on a town project. The parties agreed that a copy

of that "opinion" would be included as part of the augmented

record on appeal to this court.

The court has reviewed an e-mail from Breana Behrens, Esq.,

Staff Attorney with the Legal Services Department of MMA, to

Readfield Town Manager Eric Dyer dated October 20, 2015. (R.

at 137). It is unclear to the court whether this document was

known to the members of the Road Committee or the Select Board

while it was dealing with the situation pertaining to the Plaintiffs

bid on the Snow and Ice Control RFP and Contract. At the August

22, 2016 Select Board meeting, Sue Reay, Lenny's wife, "spoke

regarding the Conflict of Interest Ordinance and when she was a

board member and regarding the reply from MMA ...." (R. at

17

58). The court cannot tell whether Mrs. Reay was referring to the

October 20, 2015 e-mail from Attorney Behrens. Moreover, there

is no specific reference to the e-mail in any of the e-mails or

minutes involved in this case.

The e-mail from Attorney Behrens to Town Manager Dyer

reads in pertinent part as follows:

Mr. Dyer,

If a Road Committee member expects to submit a

bid for a project the safest course of action would be to

avoid any appearance of impropriety and recuse

themselves from the discussion and development of the

RFP (30-A M.R.S.A. §2605). However, since the Road

Committee is an advisory committee, it generally would

not be considered a legal conflict of interest for a

member to bid on an RFP that they helped develop or

review. This is because the committee is only

responsible for providing technical advice and expertise

and it ultimately is up to the selectboard to approve the

RFP and accept any bid pursuant to the RFP.

As is the case with most conflict of interest situations, it

is important to review all of the facts to determine

whether it is necessary for a Committee member to

recuse themselves from discussing or voting on a

particular matter.

(R. at 137).

STANDARD OF REVIEW

Generally speaking, in an appeal pursuant to M.R.Civ.P. 80B

the court reviews the decision of the local administrative agency to

18

determine if the agency "exceeded the bounds of discretion,

committed errors of law, or made findings of fact that are not

supported by substantial evidence contained in the record before

the administrative agency." Qui/and, Inc. v. Wells Sanitary Dist. ,

2006 ME 113, , 15, 905 A. 2d 806. The court's review is limited

to the "record of the proceedings before the governmental agency."

M.R.Civ.P. 80B(f). The burden of persuasion rests with the party

seeking to vacate the agency's decision. Bizier v. Town of Turner,

2011 ME 116, 8, 32 A. 3d 1048.

Moreover, in the context of a municipality's decision to

award a contract for goods or services, the Law Court has held that

"[a]s a general rule, courts will interfere with a municipal body's

award of a contract only if there is fraud, favoritism, or

corruption." Dineen v. Town of Kittery, 639 A.2d 101, 102 (me.

1994). The high level of deference to a municipality's purchasing

decisions appears to be well-established. See, e.g., Gerald Seigars

Trucking, Inc. v. Dresden, 531 A.2d 1023, 1024, n. 2 (Me. 1987);

Butler v. Tremont, 412 A.2d 385, 387 (Me. 1980)(absent a statute

or ordinance providing otherwise, "the awarding of public

contracts is left to the reasonable judgment of proper municipal

authorities"). A number of Superior Court decisions recognize the

"considerable discretion" a municipality (or other public agency)

has "when it comes to deciding what constitutes [its] 'best interest'

19

1n awarding a contract." Maietta Construction, Inc. v. City of

Portland, 2005 Me. Super. LEXIS 48, *5 (2/2/2005) (Cole, J. ).

See also Hardypond Construction v. University of Maine System,

2013 Me. Super. LEXIS 48, *6 (5/6/2013) (Warren, J.); Warren

Mechanical, Inc. v. Carvel Co., 1997 Me. Super. LEXIS 94, *20

(3/18/1997) (Saufley, J.) ("courts will not interfere lightly in the

actions of a public body engaged in a bidding procedure").

Nevertheless, the Plaintiff maintains that the court's standard

of review in this case is de nova for two reasons. First, the

Plaintiff argues that this case "involves the construction of the

Town's conflict of interest ordinance." Plaintiff's Brief On Appeal

at 10-11. In support of this argument the Plaintiff has cited a

number of cases that stand for the proposition that the

interpretation of a municipal ordinance is a question of law for the

court to decide de nova. The cases relied upon by the Plaintiff,

however, all involved municipal zoning ordinances, not a conflict

of interest ordinance that is essentially intended to provide broad

ethical guidance and direction to municipal officers and officials in

the conduct of municipal affairs, particularly in relation to those

issues that arise in the context of a municipality soliciting bids to

do business with it.

In the court's view, this case does not simply involve the

court making an interpretation of Readfield's conflict of interest

20

ordinance and determining whether Mr. Reay did or did not violate

it when he submitted a bid for the Snow and Ice Control Contract

while having served on the Road Committee that reviewed and

helped to develop the RFP and other bid documents for that

contract.

Rather, based on the Dineen decision and those that preceded

it, the court believes that the decision to accept or reject the

Plaintiffs bid was one committed to the reasonable discretion of

the Readfield Select Board. 8 As such, the Plaintiff has the burden

of demonstrating that the Select Board exceeded the bounds of

discretion. Sager v. Town ofBowdoinham, 2004 ME 40, ,r 11, 845

A.2d 567, 570. "An abuse of discretion may be found where an

appellant demonstrates that the decisionmaker exceeded the

bounds of the reasonable choices available to it, considering the

facts and circumstances of the particular case and the governing

law. It is not sufficient to demonstrate that, on the facts of the

case, the decisionmaker could have made choices more acceptable

to the appellant or even to a reviewing court." Id.

Second, the Plaintiff contends that this case should be subject

to de nova review because the augmented record on appeal

8

Alternatively, based on Dineen, it can be argued that the standard is whether the Select

Board' s decision was "arbitrary or capricious." In this case, however, the court will

apply the abuse of discretion standard, since it appears to be most consistent with the

generally used standard ofjudicial review in Rule 80B appeals. Moreover, in the court's

view, it is arguably a more generous standard for the Plaintiff. See Help-U-Sell, Inc. v.

Maine Real Estate Comm 'n. , 611 A.2d 981, 984 (Me. 1992).

21

allegedly contains information not considered by the Select Board.

Plaintiff's Brief on Appeal at 11 citing Baker's Table, Inc. v. City

ofPortland, 2000 ME 7, ,r 9, 743 A.2d 237, 240-42.

M.R.Civ.P. 80B(f) states explicitly that except where

otherwise provided, "review shall be based upon the record of the

proceedings before the governmental agency." The fact that the

parties have cooperated in preparing and presenting an augmented

record, does not alter the standard of judicial review. The case

relied on by the Plaintiff - Baker's Table - confirms this. "Rule

80B(d) is not intended to allow the reviewing court to retry facts

that were presented to the governmental decisionmaker . . . ."

2000 ME 7, ,r 9. Rather, "it is intended to allow the reviewing

court to obtain facts not in the record that are necessary to the

appeal before the court." Id (emphasis in original). In short, even

with the augmented record, this case remains an appeal, with the

court's review based on and limited to the augmented record.

Contrary to the Plaintiffs assertion, the court is not "empowered to

arrive at its own judgment without giving deference to the decision

of the Select Board." Plaintiffs Briefon Appeal at 12.

Furthermore, the court is not satisfied that the Select Board

was not aware of most, if not all, of the material and information in

the augmented record. With respect to the numerous e-mails, in

many instances the Select Board was copied on them. With

22

respect to the Road Committee meeting minutes, a member of the

Select Board was in attendance at those meetings. Having

reviewed the entire augmented record, including the video clips,

the court is persuaded that the Select Board had a thorough

understanding of the issues involving Mr. Reay; the Town

Manager; the Snow and Ice Control RFP, and; the concern of a

possible conflict of interest, or at least the perception or

appearance of one. 9

DISCUSSION

The Plaintiff argues that the Town's Conflict of Interest

Ordinance did not apply to Mr. Reay because (1) he was not a

municipal officer or official, and (2) he did not participate in the

making of the Snow and Ice Control Contract. Accordingly, he

maintains, the Select Board committed legal error when, through

the Town Manager, it refused to accept a bid from his company for

the Snow and Ice Control Contract.

The Town of Readfield's Conflict of Interest Ordinance

(§IO.I.I) provides in pertinent part as follows:

In accordance with Title 30-A M.R.S.A. Section

2605, any municipal officer or official of the Town,

9

In its Brief on Appeal at 12, the Plaintiff states that " [t]he Town Manager never

informed the Select Board of MMA Attorney Behren's legal opinion." All that can be

said about that issue is that the augmented record does not contain a clear and explicit

reference to that "opinion" by the Town Manager to the Select Board. Whether the Town

Manager informed the Select Board of that "opinion" in a manner not revealed in the

augmented record, or whether the Select Board was otherwise aware of the "opinion,"

cannot be determined on the existing record before the court.

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elected or appointed, who himself ... has any financial

interest, direct or indirect, or by reason of ownership of

stock in any corporation, in any contract with the Town,

or in the sale of any land, material, supplies, or services

to the Town or who is a contractor supplying the Town

with services or material shall make lmown the interest

and shall refrain from voting upon or otherwise

participating in his or her capacity as an officer or

employee in making such sale or the making or

performing of such contract.

(R. at 24).

The ordinance does have some ambiguities in it. For

example, it initially refers to "any municipal officer or official of

the Town." At the end of the ordinance, however, it refers to "an

officer or employee." The ordinance is clear that if an official has

an interest, the official shall disclose the interest and shall not vote

on any sale or contract. But it also prohibits "otherwise

participating . . . . in . . . the making or performing of such

contract." Is participating in the making of a contract limited to its

execution, or does it include reviewing and assisting in the

development and formulation of the contract documents and

language?

By its very terms, Readfield' s Conflict of Interest Ordinance

1s based on the provisions of 30-A M.R.S. §2605. See 30-A

M.R.S. §2605(7) ("In their discretion, the municipal officers may

adopt an ethics policy governing the conduct of elected and

appointed municipal officials"). Moreover, for purposes of section

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2605, the term "official" has been defined to mean "any elected or

appointed member of a municipal ... government." 30-A M.R.S.

§2604(2). Significantly as well, 30-A M.R.S. §2605(6) directs that

"[ e]very municipal official shall attempt to avoid the appearance of

a conflict of interest by disclosure or by abstention."

The court concludes that the Plaintiff has failed to show that

the Select Board or the Town Manager abused their discretion by

exceeding the bounds of reasonable choices available to them,

given all the facts and circumstances of this particular case. The

Select Board and the Town Manager could have reasonably

concluded that Mr. Reay was a "municipal official" within the

meaning of the town's Conflict of Interest Ordinance, by virtue of

his appointment - by the Select Board in a formal, publicly

recorded vote - as a member of the Road Committee. Such a

conclusion was not an unreasonable interpretation of the Conflict

of Interest Ordinance, given the broad definition of the term

"official."

Furthermore, it was not an unreasonable determination that

the Road Committee's involvement, over a period of months and

through several drafts, in the review and development of the

contract documents with the Snow and Ice Control RFP, fell within

the scope of "otherwise participating in . . . the making or

performing" of the contract. The court cannot say that it would

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have been an unreasonable exercise of discretion had the Select

Board and Town Manager decided otherwise. But the test is not

whether another reasonable choice or decision could have been

made, but whether the choice that was made was an abuse of

discretion.

The particular facts of this case amply support the

reasonableness of the Select Board's ultimate exercise of

discretion. Early on in the preparation of the Snow and Ice Control

RFP, the Town Manager made it unmistakably clear to the Select

Board and to the Road Committee that he considered this particular

RFP and contract to be of high importance to the Town of

Readfield. It involved a contract of well over a million dollars, and

obviously impacted a critical public safety issue during the winter '

months.

The Town Manager also flagged the issue of a potential

conflict of interest for Mr. Reay by asking him directly on May 16,

2016 whether he intended to submit a bid on the RFP. He also

made it clear to Mr. Reay at the same time that if he (Mr. Reay)

intended to bid on the RFP, he could not be involved "in setting the

parameters for the contract and bid award." (R. at 30).

Apparently, there was some type of angry verbal exchange

between Mr. Reay and Mr. Dyer at the Road Committee meeting

on May 19, 2016. Nevertheless, the minutes of the Road

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Committee for that meeting document the fact that Mr. Reay "said

he will not bid on the snow removal contract." (R. at 45).

Thereafter, he attended and participated in all Road Committee

meetings on the subject in the months of June, July and August,

2016.

At some point, he apparently changed his mind, and decided

that he wanted to bid on the RFP. He abstained from voting at the

July meeting, but still attended and, presumably, participated. The

minutes of the meeting of July, 2016 do not suggest otherwise.

Approximately 4 hours before the bid opening on August 11, 2016,

he resigned his membership on the Road Committee.

Under these circumstances, the court has no difficulty in

concluding that the Town Manager and the Select Board acted well

within their discretion in refusing to accept or open a bid from the

Plaintiff. Given the unequivocal position of the Town Manager

that, at the very least, an appearance of a conflict of interest existed

with respect to Mr. Reay's participation in the development of the

RFP such that the integrity of the bidding process could be

questioned, and given the equally unequivocal representation that

Mr. Reay would not submit such a bid, it was within the bounds of

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reasonable choices for the Select Board and the Town Manager to

reject the Plaintiffs bid. 10

The Plaintiff has raised the point that when he was appointed

to the Road Committee, at least one Select Board member

expressed the personal opinion that Mr. Reay would not have a

conflict of interest if he bid for town work, provided he disclosed

and abstained from voting. Of course, these remarks are not

binding on the Town Manager and Select Board acting as a body.

Moreover, they are totally divorced from the facts of this case.

The Plaintiff has argued that he abstained from voting on the

snowplowing RFP and resigned prior to submitting a bid. The

reality is that the concern of the Town Manager and the Select

Board was not Mr. Reay's membership on the Road Committee.

Rather, it was his involvement and participation in the review and

development of a million dollar RFP for the very contract he

decided to bid for. Abstaining from voting and resigning did

10

The Plaintiffs claim that he did not make a firm commitment at the meeting of May

19, 2016 not to bid, but reserved to himself the right to change his mind, is unconvincing.

See Plaintiff's Amended Offer of Proof First, the minutes of the May 19, 2016 Road

Committee meeting could not be clearer. Second, those minutes, as written, were

approved by the Road Committee, including Mr. Reay, at its meeting held on June 23,

2016. (R. at 46). Third, the minutes of the May 19, 2016 meeting indicate that the Town

Manager questioned whether Mr. Reay should be participating in the review of the

snowplowing RFP "if he is going to bid on the contract." In response, other members of

the Committee expressed the view that they wanted to hear Mr. Reay's comments

because of his expertise on the subject. At that point, Mr. Reay stated that he would not

bid on the contract. In other words, Mr. Reay's declaration that he would not bid on the

RFP was made for the very purpose of allowing him to participate in the review,

discussion and development of the RFP, and thereby eliminate the threat to the integrity

of the bidding process the Town Manager feared.

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nothing to undo the involvement and participation by Mr. Reay in

the Road Committee's work on this particular RFP.

The Plaintiff has tried to suggest that his participation on the

snowplowing RFP was not significant. Such a claim in unavailing.

The Road Committee minutes show that there was lengthy and

detailed review and discussion of the snowplowing RFP. There is

no indication whatsoever that Mr. Reay did not fully participate.

Indeed, as already noted, the other members of the Committee

were eager to hear Mr. Reay's views on the subject.

The Plaintiff maintains that the Town Manager failed to

inform the Select Board of the existence of the "opinion" from

Staff Attorney Behrens of the Maine Municipal Association.

Whether this is true or not is immaterial. First, the e-mail from

Attorney Behrens makes the obvious point that the safest course of

action for a Road Committee member "would be to avoid any

appearance of impropriety and recuse themselves from the

discussion and development of the RFP." (R. at 137). In other

words, such a course of action, which is the one the Town Manager

and the Select Board insisted upon, was a reasonable exercise of

their discretion. Second, Attorney Behrens makes the point that

because the Road Committee is an advisory committee, there

would not be a "legal" conflict of interest, i.e., the contract would

not be voidable. Irrespective of whether Mr. Reay's actions

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implicated a "legal" conflict of interest, the Town Manager and the

Select Board acted within the bounds of reasonable discretionary

decisions in choosing to pursue a course of action that sought to

avoid even the appearance of a conflict of interest.

Finally, the court concludes that the Plaintiff has failed to

carry its burden of showing that the Town Manager or the Select

Board was biased against either Mr. Reay or his company. At

most the Plaintiff has shown that the Town Manager and Mr. Reay

had some type of verbal exchange because the Town Manager was

adamant in wanting to know - before the Road Committee began

its work on the snowplowing RFP - whether Mr. Reay was going

to submit a bid in response to that very RFP. The fact that two

individuals had different views on a topic does not show bias.

Indeed, this very controversy could have been easily avoided had

Mr. Reay simply recused from any participation or involvement in

the Snow and Ice Control RFP and Contract as a member of the

Town of Readfield Road Committee.

30

CONCLUSION

The entry is:

The Plaintiffs Appeal pursuant to M.R.Civ.P. 80B 1s

DENIED.

The Clerk is directed to incorporate this Order into the docket

of this case by reference in accordance with M.R.Civ.P. 79(a).

Dated: October 16, 2017

Justice, Superior Court

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