Com. v. Brown

• Decision Date: 14 February 1984
• Citation: 460 N.E.2d 606,391 Mass. 157
• Parties: COMMONWEALTH v. Edward E. BROWN (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 606

460 N.E.2d 606

391 Mass. 157

COMMONWEALTH v. Edward E. BROWN (and two companion cases ¹).

Supreme Judicial Court of Massachusetts,

Bristol.

Argued May 6, 1983.

Decided Feb. 14, 1984.

Henry P. Sorett, Boston, for Edward E. Brown.

Douglas B. Weilding, Attleboro, for Walter Geraghty.

Geoffrey Packard, Boston, for Joseph Nardozza.

Patricia O. Ellis and Phillip L. Weiner, Asst. Dist. Attys., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendants were convicted by a jury of conspiring to violate the provisions of G.L. c. 43, § 28, which prohibit the award of certain contracts by a city without competitive bids. The conspiracy was alleged in the indictments to have taken place between April, 1974, and August, 1979. Sentences were imposed. The defendants appealed. Execution of the sentences was stayed pending appeal. The defendants also appealed from the denial of several posttrial motions. We transferred the case to this court on our own motion. We hold that denial of the defendants' motions for required findings of not guilty, presented at the close of the Commonwealth's case and at the close of all the evidence, was error, and we reverse the convictions. The basis of our holding is that the contracts at issue were not subject to the competitive bidding requirements of G.L. c. 43, § 28. In view of our holding it is unnecessary for us to consider numerous other issues presented by these appeals.

General Laws c. 43, § 28, as amended through St.1974, c. 199, § 2, in effect throughout the periods relevant to these indictments, provided that "[n]o contract for construction work or for the purchase of equipment, supplies or materials, whether for repairs or original construction, the estimated cost of which amounts to two thousand dollars or more ... shall be awarded unless [certain bidding procedures are followed] .... No bill or contract shall be split or divided for the purpose of evading any provision of this chapter." The jury could have found the following facts from the evidence most favorable to the Commonwealth. The defendant Brown was superintendent of public buildings for the city of Taunton during the period of the alleged conspiracy. The other defendants, as well as Frederick Randall and Richard Grassley, ² were roofers. Between April, 1974, and December, 1977, Brown awarded the defendant Nardozza at least fifty contracts to repair and resurface existing roofs of four Taunton public schools. There were no competitive bidding procedures. The work was done by Nardozza and Nardozza was paid for it, but the city's records showed that the contracts were awarded, and payments were made, to Randall, Grassley, and the defendant Geraghty. The amount invoiced for each job was under $2,000, and in almost every instance it was almost that much. Charges for equipment, supplies or materials were included in only four invoices and they totalled $653.50. From this evidence and from evidence of the nature of the work performed pursuant to the several contracts, the jury could have found that the defendants conspired to divide the roofing projects into small units in order to evade bidding requirements that they either thought had been imposed, or thought might have been imposed, by G.L. c. 43, § 28.

However, it was not enough for the Commonwealth to show that the defendants attempted to evade bidding procedures that they thought were required by G.L. c. 43, § 28. The burden was on the Commonwealth to prove that the defendants combined for a purpose, or contemplated the use of a method, that was actually prohibited by G.L. c. 43, § 28. See Commonwealth v. Bessette (No. 1), 351 Mass. 148, 153-154, 217 N.E.2d 893 (1966); Commonwealth v. Bessette (No. 2), 351 Mass. 157, 162, 217 N.E.2d 899 (1966). The Commonwealth, therefore, was required to prove that the contracts that were awarded were for "construction work or for the purchase of equipment, supplies or materials, whether for repairs or original construction, the estimated cost of which [amounted] to two thousand dollars or more" within the meaning of that language in the statute. There was no evidence that the contemplated contracts would provide for equipment, supplies, or materials, the total estimated cost of which was $2,000 or more, to be furnished to the city. This case, therefore, is unlike Datatrol, Inc. v. State Purchasing Agent, 379 Mass. 679, 696 & n. 14, 400 N.E.2d 1218 (1980), in which we held that a contract for personal services was subject to the bidding requirements of G.L. c. 7, § 22, because it was incident to a procurement of equipment for which bidding was required. We are confronted with the limited question whether "construction work," not defined in the statute, includes the repair and resurfacing of roofs on existing buildings. In answering that question, we are guided by the principle that criminal statutes must be strictly construed. Commonwealth v. Gagnon, 387 Mass. 567, 569, 441 N.E.2d 753 (1982). Commonwealth v. Devlin, 366 Mass. 132, 137, 314 N.E.2d 897 (1974).

If the Legislature intended the statutory phrase "whether for repairs or original construction" to refer to contracts for construction work as well as to contracts for the purchase of equipment, supplies, or materials, it would necessarily follow that the Legislature meant "construction work" to include repairs. However, if the phrase refers only to contracts for the purchase of equipment, supplies, or materials, it sheds no light on the meaning of "construction work" and we must look elsewhere for assistance in construing that term. We conclude that the modifying phrase refers only to contracts for the purchase of equipment, supplies, or materials. In doing so, we rely not only on the rule of strict construction of criminal statutes, but also on "the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231, 431 N.E.2d 225 (1982), quoting Hopkins v. Hopkins, 287 Mass. 542, 547, 192 N.E. 145 (1934). Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133, 85 N.E.2d 232 (1949). We are not satisfied that the subject matter or dominant purpose of G.L. c. 43, § 28, requires that the modifying clause not be confined to the last antecedent in keeping with the general rule.

The Commonwealth argues that the statute's clear purpose requires that "construction work" be construed to include roof repair and resurfacing. The argument is that G.L. c. 43, § 28, is but one of many competitive bidding statutes, all of which must be interpreted harmoniously to further a common purpose: establishing fair competition and obtaining the lowest available prices from responsible bidders for public projects. See Interstate Eng'g Corp. v. Fitchburg, 367 Mass. 751, 757-758, 329 N.E.2d 128 (1975). The Commonwealth observes that competitive bidding on contracts for the repair of public buildings is no less relevant to these objectives than competitive bidding on original construction. Our attention is directed to several statutes, all of which were enacted substantially later than 1915, the year that G.L. c. 43, § 28, was enacted. See St.1915, c. 267, § 28. For instance, G.L. c. 29, § 8A, as appearing in St.1980, c. 579, § 52, requires competitive bidding on contracts with the Commonwealth "for the construction, reconstruction, alterations, repair or development at public expense of any building, road, bridge or other physical property if the amount involved therein is one thousand dollars...