Road contract decisions questioned, defended (Aug. 23, 2010)

Road contract decisions questioned, defended

By Mechele Cooper
Staff Writer

CHELSEA — Carole Swan says claims she steers municipal road contracts to her husband’s firm are nothing but a “vendetta.”

The accusations of preferential treatment peaked after a culvert project on Windsor Road last year sparked environmental sanctions from the state.

The project, a $53,000 culvert replacement to alleviate road flooding, was done by Marshall Swan Construction of Chelsea.

Marshall Swan is Carole Swan’s husband. Carole Swan is an 18-year member of the Board of Selectmen and its current chairman.

The project was awarded to Marshall Swan without a competitive bidding process because the town deemed the job an emergency.

The Maine Department of Environmental Protection may seek penalties from the town because the work caused a protected wetland to be filled and was done without a state permit. The town claims faulty maps failed to indicate the presence of the wetland.

With the Windsor Road project still causing a potential liability to the town, critics of Chelsea’s road contracting have gotten louder.

More work than most

In recent years, town records show Marshall Swan Construction frequently performed much of the town’s road and construction projects.

For example, copies of contractors’ bills submitted for road work from the spring of 2006 to the fall of 2007 show that, out of the $360,711 spent, Swan Construction got $226,778 — or 60 percent of the outlays. Ferraiolo Corporation got $112,122 during that time; and Ben Pushard, $54,761.

But Carole Swan vigorously denies exerting influence over fellow selectmen or town personnel in order to secure contracts for her husband’s company.

“There are people looking for something not there,” she said in an interview with the Kennebec Journal.

Swan said most of Chelsea’s town managers have had no experience writing bid specifications, so it was easier to give her husband the jobs and keep the amounts under $10,000.

Chelsea’s contracting rules say officials must seek bids for any contract that exceeds $10,000. Contracts for less expensive work or those projects deemed an emergency may be awarded by the road commissioner or Board of Selectmen.

“It’s been easier over the years to hire my husband,” Swan said. “That doesn’t reflect on me.”

Swan’s attorney, P.J. Perrino Jr., said Swan never votes if her husband submits a bid or influences the bidding process in her husband’s favor during open meetings.

If a job is declared an emergency, it’s the road commissioner — not Swan — who makes that determination, he said.

He said questions about bidding on Chelsea’s road work amount to a “witch hunt.”

Noncompetitive bidding

Other observers — including Chelsea contractors and former town officials — say the Windsor Road project is only the latest example of contracts being awarded outside a competitive bidding process to benefit Marshall Swan Construction.

“Everything’s going to Swan,” said Mark Warren, vice president of Harold Warren Construction of Chelsea, who has often challenged the town’s contracting process.

Critics with knowledge of Chelsea’s road bidding say the bidding ordinance is subverted when the town declares projects an emergency or when contractors send the town invoices several times for a single project with each invoice totaling just less than $10,000.

Town ordinance states: “An emergency is defined as it would affect life, property and liability if the situation is not taken care of before limitations of the bidding process could be made.”

At least two former town officials — former Selectman Rick Danforth and former Selectman Sharon Morang — question whether the Windsor Road project was an emergency.

On June 17, Danforth told Town Meeting attendees that town officials had discussed what to do about that area for years.

Morang, who completed her three-year term as selectmen this year, said she was unaware of the project until it was well under way.

“Supposedly, it was an emergency and there were ducks in the road,” she said. “I live off that road and never saw any ducks, and I travel it every day.”

According to invoices released by the town in response to a Freedom of Access Act request by the Kennebec Journal, several Swan Construction road projects in Chelsea since 2009 have been billed to the town in piecemeal fashion.

In some of those, Swan Construction submitted multiple invoices for less than $10,000 for the same project. Invoices from other contractors did not follow that same practice.

The obtained invoices show:

* A report dated Aug. 25, 2009 shows Swan Construction received five separate payments for emergency culvert work on Williams Road. Checks dated Aug. 17 were for $9,450, $500, $2,100, $7,800 and $7,790. There also was a $2,300 check dated Aug. 31 for work on that road.

* For work on Hillcrest Road, Swan was paid by three separate checks dated Aug. 31, 2009: $8,300 for “culvert, rock, seed” ; $9,500 for “ditching, seed, mulch” ; and $1,800 for “culvert, seed, rock.”

* In September 2009, Swan replaced a culvert on Cony Road for $9,700 and two weeks later billed the town $9,600 to replace three more culverts on that same road.

For the Windsor Road project that drew DEP scrutiny in October 2009, town records show Swan received three separate checks: $53,000, $5,750 and $7,850.

“Ferriaolo, a firm specializing in tarring roads, used Swan as a subcontractor for ditching, grading and gravel,” Danforth said. “Most of the bills submitted to the town were under the $10,000 bidding limit. This is the year (2006) that I suspected something was not ethically correct, and I started to call this to the attention of the (town) manager and Carole that, although this was not illegal, it was a challenge to our ethics policy.”

Who decides?

In Chelsea, the town manager doubles as road commissioner; when the town lacks a manager, selectmen serve as road commissioner and award contracts.

Since former Town Manager Bob Drisko left the town’s employment in 2004, Chelsea has had four other managers.

The town’s ethics policy prohibits selectmen from making or participating in deliberations about town-related purchases; or from entering the town into contracts with members of their immediate family, or businesses which they or their immediate family own or manage.

As a selectman, Danforth said he’s also asked contractors to do jobs, on the town’s behalf, when there was no manager available to do so.

Swan has torn up her husband’s bids before, she said, to avoid any conflict of interest with her role as selectman.

Accusations of favoring her husband’s business are the product of personal differences, Swan said, and that her record and her husband’s record of work for the town speak for themselves.

“There’s never been a job (my husband) has done that had to be redone,” she said. “If you look back, Bob (Drisko) hired my husband just as much. ”

Changing the system

Swan said the board is looking into separating the position of town manager and road commissioner to alleviate concerns about how road contracts are distributed.

“That was the first thing we talked about as a board when (Michael) Pushard came on board,” she said.

Pushard was elected to the board in June, replacing Morang who did not seek re-election.

Geoff Herman, Maine Municipal Association director of state and federal relations, said cases such as Chelsea’s are less an issue of legality and more of an issue of home rule.

If there are changes to be made, they must be made by a town’s legislative body — which, in Chelsea, is its citizenry.

“This is home rule,” Herman said. “Each town establishes for itself what standards they want. That home rule comes with a responsibility: If (townspeople) don’t like the way the policy is run, then (they) should change it.”

Meanwhile, Swan indicated she will continue in her role as she has.

“Stuff like this happens all the time in small towns,” she said.

“I look back to 1997 and my husband has done a lot of work. I think a couple of people — I hate to use the word jealousy — I think it’s a personal thing. A vendetta.”

Mechele Cooper — 623-3811, ext. 408

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