To:
Secretary Daniel A. Grabauskas, EOT
Through:
Commissioner John Cogliano, MHO
From:
Stephen H. Clark, Administrative Law Judge
Date:
September 30, 2004
Re:
Report and Recommendation
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I am pleased to submit for your consideration and approval the attached report
and recommendation.
The pending administrative claim of Renz Painting, IDe. (Renz)
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arising from MBD contract #97424 should be dismissed
because Renz bu filed an amoD in Superior Court to litigate
tbe same claim and 'only tbe Attorney General may DOW
conduct the litigation or Renz's claim.
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Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3973· (617) 973-7800
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John Cogliano
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To:
Secretary Daniel A. Grabauskas, EDT
Through:
ColIllllissioner John Cogliano, MIlD
From:
Stephen H. Clark, Administrative Law Judg~
Date:
S~mher30,2004
Re:
Report and RecoInInendation
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I am please to submit for your consideration and approval the a_bed report and
recommendation.
j
1be pending administrative claim of Renz Painog, lac. (Renz)
arising from MHD coutract #97414 should be dismissed
bocau"" Renz hu med an action in Superior Court to litigate
the aame claim and only the Attorney GeDeraJ may DOW
conduet the litigation of Renz'. claim.
)
Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3973 • (617) 973-7800
STATEMENT OF THE APPEAL
Renz Painting, Inc. (Renz) appealed from the adverse decision of the claims
committee of the Massachusetts Highway Department (Department) concerning the
interpretation of specifications of contract #97424 (Contract) that govern the required
cleaning method for the bridge over Dunstable Road under Route 3 in Tyngsborough. As
revealed in Renz’s Statement of Claim, its appeal seeks $20,889.68 for alleged extra
work to perform power tool surface preparation to steel beams instead of the SP3 surface
preparation that Renz contends the Contract specifications require.
Renz’s Statement of Claim was filed in the Office of the Administrative Law
Judge on May 12, 2004. No-pre hearing conference was held and no hearing was
conducted on the appeal.
On September 2, 2004 Renz filed a complaint in Superior Court, SUCV20043919, asserting a claim identical to its pending administrative claim in this office. See
Complaint, Count III, seeking $20,889.68.
DISCUSSION
The question presented is whether Renz’s pending administrative appeal arising
under Contract #97424 should be dismissed because Renz has filed an action in the
Superior Court seeking relief on an identical claim. I conclude that Renz’s administrative
appeal in the Department should be dismissed. Any action taken by the Department in
the hearing or deciding Renz’s pending administrative appeal will 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 identical or related litigation.
Renz has filed suit in Superior Court against the Department on a claim identical
to that currently pending in the Office of the Administrative Law Judge. Because only
the Attorney General may conduct litigation filed against the Department, any hearing or
disposition of Renz’s identical pending administrative appeal will necessarily conflict
with the Attorney General’s exclusive statutory and constitutional authority.
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):
2
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.
Accordingly, Renz’s appeal under Contract #97424 should be dismissed.
RECOMMENDATION
The Commissioner should dismiss Renz pending appeal arising from Contract
#97424.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: September 30, 2004
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