To:
Secretary Daniel A. Grabauskas, EOT
Through:
Commissiooer John Cogliano, MHD
,,
"
From:
Stephen H. Clark, Administrative Law Judge \~.
Date:
September 30, 2004
Re:
'
-~---;I4rjJf:V' .,
I am pleased to submit for your consideration aod approval !be attached report
and recommendation.
All peoding administrative claims of Renz Painting, Inc. (Renz)
arising from MUD contract #97425 sbould be dismissed siDce
Renz bas filed an .ction in Superior Court for two closely
related claims arising from tbe same contract and any action
taken by the Department on the related administrative appeals
could conflict with the powen and functions oftbe Attorney
General in tbe conduct of the underlying litigation.
Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3973· (617) 973-7800
To:
SeCIetary Daniel A. Grabauskas, EOT Through:
Commissioner John Cogliano, MHD
From:
Stephen H. Clarl<, Administrative Law Judge
Date:
September 30, 2004
Re:
Report and Recommendation pJ..)\. *
1"\ I am please to submit for your consideration and approval the attached report and
recommendation.
AD peadiDl administrative ....Im, of ReD Palatiag, IDe. (Renz)
_iIll from MBD contrut #97425 Ikoald be dismissed sillce
Reo bu med an action ill Superior Court for two closely
related d·jm, arUmc: frOm tile same CODtraet aad any attioD
takm by th. Department on th. related administrative appeals
could coDflict with th. powen and fimctiODl or the Attorney
Gen..... ill th. conduct of th. and.rlyinclitigatlon.
MassachuSBtts Highway Department· Ten P~rk Plaza, Boston, MA 02116-3973' (617) 973-7800
STATEMENT OF THE APPEAL
Renz Painting, Inc. (Renz) appealed from adverse decisions of the Massachusetts
Highway Department (Department) concerning the interpretation of contract #97425
(Contract), which was for the cleaning and painting of two bridges over Route 128 at Rt.
30 and Rt. 9. As revealed in Renz’s Statement of Claim, Renz seeks to reverse certain
accounting decisions that have allegedly damaged Renz in the amount of $5,232.34 when
it performed the cleaning and painting work.
Renz’s Statement of Claim, dated June 28, 2004, was filed in the Office of the
Administrative Law Judge on July 1, 2004. No pre-hearing conference was held and no
hearing was conducted.
On April 27, 2004 Renz filed a complaint in Superior Court, SUCV2004-1808-G,
asserting claims arising under Contract #97425. The court action alleges damages arising
from (1) additional cleaning work on the Rt. 30 bridge (Count I; $65,891.00) and (2)
clean up work on the Rt. 9 bridge (Count II; $19,223). The claims in Superior Court are
closely related to the pending appeals before this office arising from Contract #97425.
DISCUSSION
The question presented is whether Renz’s pending administrative appeal arising
under Contract #97425 should be dismissed because Renz has filed an action in the
Superior Court seeking relief on related claims arising under the same Contract. I
conclude that Renz’s administrative appeals arising from Contract #97425 in the
Department should be dismissed. Any action taken by the Department in the hearing or
deciding Renz’s pending administrative appeals have the potential to conflict with the
functions of the Attorney General. As a matter of policy, the Department should not hear
and decide appeals that could even potentially interfere with the disposition of identical
or related actions in court.
The Attorney General has exclusive jurisdiction to appear for the Department “in
all suits … in which the commonwealth is a party or interested, or in which the official
acts and doings of said [Department] … are called in question, in all the courts of the
commonwealth …. All such suits and proceedings shall be prosecuted or defended by
him or under his direction.” G.L. c. 12, s.3. In the exercise of his statutory and
Constitutional powers, the Attorney General assumes primary control over the conduct of
litigation that involves the interests of the Commonwealth; under his powers in so doing
he decides matters of legal policy normally reserved to a client in the ordinary attorneyclient relationship. See Feeney v. Commonwealth, 373 Mass. 359 (1977). The Attorney
General has the incidental power to compromise or settle matters in which the
commonwealth is a party or interested. See 6 Op. Atty. Gen. 1921, p. 169. The
Department, through proceedings before its Administrative Law Judge, should refrain
from any action that could even potentially interfere with the Attorney General’s conduct
of closely related litigation.
Renz has filed suit in Superior Court against the Department on claims arising
from Department Contract #97425 and has also filed an administrative appeals on closely
related claims arising from the same subject matter. The pending administrative claims
are without doubt of the character that could and should be joined with SUCV2004-1808G. See Mass. R. Civ. Pro. 19 and 20. Because of the power of the Attorney General to
conduct litigation filed against the Department, any hearing or disposition of Renz’s
related administrative appeals arising from the same Contract has the potential to conflict
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with the exclusive statutory and constitutional authority of the Attorney General to
conduct the underlying litigation in SUCV2004-1808-G.
Practitioners before the office of the administrative law judge understand that the
filing of a court action results in the dismissal of a pending administrative appeals. With
respect to the Department, the report of the “20th Annual Conference on Massachusetts
Construction Law” states (at page III-5):
It should be noted further that wherever a claim is asserted in a
court action, the MHD Hearing Officer … will refuse to entertain
such claim. Accordingly, no action can be brought in court on any
claim which is pending before the MHD Hearing Officer or it will
be immediately be dismissed by the MHD Hearing Officer.
The above statement applies with equal force to closely related claims that could
be incorporated into the underlying litigation managed by the Attorney General. The
Department’s parallel disposition of a closely related administrative appeal arising under
the same Contract should be avoided because Department actions could adversely impact
the pending litigation—for example, by an admission made in an administrative hearing
or the piecemeal settlement of claims.
Accordingly, Renz’s appeal under Contract #97425 should be dismissed.
RECOMMENDATION
The Commissioner should dismiss Renz’s all pending appeals arising under
Contract #97425.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: September 30, 2004
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