STATEMENT OF THE APPEAL
Renz Painting, Inc. (Renz) appealed decisions of the claims committee arising
from cleaning, painting and related work on certain bridges in Woburn and Arlington
under Massachusetts Highway Department (Department) contract #97421 (Contract). As
revealed in Statements of Claim filed by Renz, its appeals under the Contract relate to the
following claims:
(1)
(2)
(3)
(4)
Repair of stress crack (Mishawam Road)
Clean/paint pigeon screens (Dow Street)
Lane closure (Mishawam Road)
Delead/ paint bridge rail (Mishawam Road)
$24,694.00
$3,229.69
$37,516.88
$43,665.10
A hearing was held before Administrative Law Judge Peter Milano on these
appeals on October 16, 2001, as continued to November 29, 2001. Judge Milano
resigned his office before he made a report and recommendation to the Board of Contract
Appeals. On March 25, 2004 the undersigned held a status conference on the record.
On June 28, 2004 Renz filed three additional claims arising from the
administration of the Contract. Specifically, Renz asserts accounting errors concerning
police detail payments, interest on late payments and omission of payment for certain
items. The additional administrative appeals are closely related to the four administrative
appeals previously filed.
On September 4, 2004 Renz filed a complaint in Superior Court, SUCV20043919 to litigate claims also asserted on two of the above-referenced items, to wit (1)
repair of stress crack (Mishawam Road) and (2) clean/paint pigeon screens (Dow Street).
Renz’s court action did not specifically reference the remaining administrative appeals
for (1) lane closures ordered by the Department at Mishawam Road bridge site, (2) the
deleading and painting of the bridge rails of the Mishawam Road bridge or (3) the related
June 28, 2004 claims arising from the administration of the Contract.
DISCUSSION
The question presented is whether all administrative appeals of Renz under
Contract #97421 should be dismissed because Renz has filed related actions in Superior
Court. I conclude that all Renz’s administrative appeals should be dismissed. All claims
under the Contract are closely related and any action taken by the Department on Renz’s
remaining administrative appeals arising under the same Contract could adversely affect
the power of the Attorney General to conduct the litigation in SUCV2004-3919. As a
matter of policy, the Department should not hear and decide appeals that could
potentially interfere with the disposition of related claims in court. This is particularly
the case where the bifurcation of Renz’s claims could be perceived as a litigation strategy
to defeat the strong legal principle favoring the consolidation of claims.
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
2
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 potentially interfere with the Attorney General’s conduct of
related litigation.
Renz filed suit in Superior Court against the Department for two claims on which
identical appeals are currently pending in the office of the administrative law judge. At
the same time Renz left pending five related administrative law appeals arising from the
same Contract. The remaining five administrative appeals are of the character that could
and should be joined with SUCV2004-3919. See Mass. R. Civ. Pro. 19 and 20. Because
of the power of the Attorney General to conduct all litigation filed against the
Department, any hearing or disposition of Renz’s closely related administrative appeals
has the potential to conflict with the Attorney General’s statutory and constitutional
functions. Accordingly, all Renz’s administrative appeals arising from the performance
of Contract #97421 should be dismissed.
Practitioners before the office of the administrative law judge understand that the
filing of a court action results in the dismissal of 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 all closely related administrative
claims. That is so because the Department’s prosecution or disposition of related
3
administrative appeals could adversely impact the pending litigation—for example, by an
admission made in an administrative hearing or by the piecemeal settlement of related
claim.
RECOMMENDATION
The Commissioner should dismiss all pending administrative appeals arising from
Contract #97421.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: September 30, 2004
4