Settlement  Disposition Agreement in the Matter of Robert Benjamin

Date:	06/25/2024
Organization:	State Ethics Commission
Docket Number:	24-0018
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Disposition Agreement

The State Ethics Commission (“Commission”) and Robert Benjamin (“Benjamin”) enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j).

On September 21, 2023, the Commission initiated a preliminary inquiry, pursuant to G.L. c. 268B, § 4(a), into possible violations of the conflict of interest law, G.L. c. 268A, by Benjamin. On December 21, 2023, the Commission concluded its inquiry and found reasonable cause to believe that Benjamin violated G.L. c. 268A, §§ 19, 20, and 23(b)(2)(ii).

The Commission and Benjamin now agree to the following findings of fact and conclusions of law:

Findings of Fact

1. Benjamin served on the Topsfield Parks and Cemeteries Commission from the early 1990s to 2018. 
2. During the relevant time, the Parks and Cemeteries Commission was responsible for managing and maintaining the Town’s multiple parks and three cemeteries. Pine Grove Cemetery was the Town’s largest cemetery.

3. At the April 11, 2017, Parks and Cemeteries Commission meeting, Commission Chair Steven Mscisz (“Mscisz”) made the following motion:

   …[F]or the consideration of a lifetime of service and dedication to Parks and Cemetery, and a fee of $3,000.00, the Cemetery transfer as a lot to be named ‘The Benjamin Family Block’ to Bob Benjamin and family, which we’ll discuss later, and for a stipend of $5,000.00 the Park and Cemetery will name a block the ‘Mscisz Family Block,’ and we will talk about that name later.

4. Benjamin and Mscisz each voted in favor of the motion.
5. Due to a vacancy on the three-member Commission, Benjamin and Mscisz were the only Parks and Cemeteries Commissioners at the relevant time.
6. During the April 11, 2017 meeting, Mscisz suggested that he and Benjamin purchase the entire area referred to as the “D.C. Circle Block” in the Pine Grove Cemetery to accommodate Mscisz’s family and Benjamin’s family. Benjamin agreed to do so.
7. Benjamin understood and intended that, with the April 11, 2017 vote, he and Mscisz would receive the benefit of exclusive access to burial plots in the D.C. Circle Block area for themselves and their respective families.
8. At the relevant time, the D.C. Circle Block area was an undeveloped, tree-covered area located at the top of a hill in the rear of the Pine Grove Cemetery and plots in the D.C. Circle Block were not available for purchase.
9. At the relevant time, available Town cemetery burial plots cost $1,000 each to purchase.
10. On February 10, 2018, the Town issued to Benjamin and his spouse a deed to a lot including plots 0-5 in the D.C. Circle Block area of the Pine Grove Cemetery upon Benjamin’s payment of $1,200.
11. Benjamin and Mscisz each signed the deed as Parks and Cemeteries Commissioners.
12. At the time he was issued the deed to the six-plot cemetery lot, Benjamin understood and intended his $1,200 payment to be full payment for the lot and its six plots.
13. Apart from Benjamin and Mscisz, no Town resident was able to purchase a lot in the D.C. Circle Block area of the cemetery during the relevant period.

14. On March 23, 2023, the Topsfield Town Administrator sent Benjamin a letter stating that the Town had discovered discrepancies between the number of plots purchased, the price paid, and the corresponding deed, and that the circumstances raised “serious concerns under the Conflict of Interest Law.” On April 20, 2023, Benjamin paid the Town an additional $4,800 for the lot and its six plots. Thus, Benjamin wound up paying a total of $6,000 for six plots - ultimately paying the then established plot price of $1,000 per plot.

    Conclusions of Law

    Section 19 Violations

15. General Laws chapter 268A, § 19 prohibits a municipal employee from participating as such an employee in a particular matter[1] in which to his knowledge he or his immediate family[2]  has a financial interest. As a Topsfield Parks and Cemeteries Commissioner, Benjamin was, at all relevant times, a municipal employee as defined by G.L. c. 268A, § 1(g).   
16. The transfer of ownership of the Town cemetery lot and its six plots to Benjamin and his spouse, including the motion and vote to transfer the lot and the issuance of the deed to complete the transfer, was a particular matter.
17. Benjamin participated in the transfer particular matter by voting in favor of Mscisz’s April 11, 2017, motion “[F]or the consideration of a lifetime of service and dedication to Parks and Cemetery, and a fee of $3,000.00, the Cemetery transfer as a lot to be named ‘The Benjamin Family Block’ to Bob Benjamin and family…” which authorized the transfer of the cemetery plots to Benjamin.
18. Benjamin also participated in the particular matter by signing the deed to lot and its six plots as a Parks and Cemeteries Commissioner.
19. Benjamin and his spouse, had, to his knowledge, a financial interest in the transfer of the ownership of the Town cemetery lot and its six plots to them.

20. Therefore, as Topsfield Parks and Cemeteries Commissioner, both by voting in favor of Mscisz’s motion to transfer the cemetery lot and its plots to him and his immediate family and by signing the deed to the lot and its six plots as Park and Cemeteries Commission, Benjamin violated § 19.

    Section 23(b)(2)(ii) Violations

21. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions of substantial value that are not properly available to similarly situated individuals.
22. Benjamin violated section 23(b)(2)(ii) by initially purchasing cemetery plots at a reduced rate and by securing on a preferential basis multiple plots in the D.C. Circle Block.
23. Benjamin’s initial purchase of a lot in the Pine Grove Cemetery containing six plots for $1,200 was an unwarranted privilege in part because plots in the cemetery cost others $1,000 each at the time.
24. The privilege was of substantial value because the difference between the normal price for six cemetery plots of $6,000 and the $1,200 Benjamin paid for his lot of six plots was $4,800.
25. Benjamin used his official position as Parks and Cemeteries Commissioner to secure this unwarranted privilege by voting in favor of Mscisz’s April 11, 2017 motion to transfer the lot and its six plots to him and his spouse, and by signing the deed transferring the lot to himself and his spouse.
26. No other Town resident or official was properly able to purchase Pine Grove Cemetery plots for less than $1,000 each during the relevant period.
27. Therefore, by using his municipal position to initially purchase a cemetery lot containing six plots for $1,200, when plots cost everyone else $1,000 each, Benjamin knowingly, or with reason to know, used his official position as a Parks and Cemeteries Commissioner to secure for himself and his spouse an unwarranted privilege of substantial value that was not properly available to similarly situated individuals. In so doing, Benjamin violated § 23(b)(2)(ii).
28. Benjamin’s preferential access, along with Mscisz, to cemetery plots in the previously undeveloped D.C. Circle Block area of the Pine Grove Cemetery before any other resident and the opportunity to acquire multiple plots there for themselves and their respective families before anyone else, was an unwarranted privilege that was not properly available to similarly situated individuals. Other than Benjamin and Mscisz and their families, no Town resident or official was allowed the opportunity to acquire a plot in the D.C. Circle Block during the relevant period.
29. This unwarranted privilege was of substantial value given that it provided Benjamin and Mscisz and their respective families with peace of mind worth $50 or more as owning the lots would allow them to avoid the stress and expense of finding a proper burial location at the time of a death in their families.[3]
30. Benjamin secured this unwarranted privilege through the use of his position as a Parks and Cemeteries Commissioner.

31. Therefore, by using his municipal position to secure for himself and Mscisz and their respective families exclusive access to cemetery plots in the previously undeveloped D.C. Circle Block area of Pine Grove Cemetery before any other resident, Benjamin knowingly or with reason to know used his official position to secure for himself and others unwarranted privileges of substantial value that were not properly available to similarly situated individuals. In so doing, Benjamin violated § 23(b)(2)(ii).

    Section 20 Violation

32. Section 20 of G.L. c. 268A prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town, in which the town is an interested party, of which financial interest he has knowledge or reason to know.
33. The deed transferring the lot and its six plots in Town Pine Grove Cemetery to Benjamin and his family was a contract.
34. Benjamin knew he had a financial interest in the deed at the time he signed it and at all relevant times thereafter.
35. While a regulatory exemption from § 20 generally permits municipal employees to purchase items from the municipality that are readily available at a set price to the public at large,[4] here, Town cemetery plots were not in fact available to the general public for the price at which Benjamin originally purchased them. Thus, the exemption does not apply.

36. Therefore, by, while serving as Parks and Cemeteries Commissioner, having to his knowledge a financial interest in a contract with the Town, Benjamin violated § 20.

    Disposition

In view of the foregoing violations of G.L. c. 268A by Benjamin, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the following terms and conditions agreed to by Benjamin:

(1)        that Benjamin pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $6,000 as a civil penalty for violating G.L. c. 268A, §§ 19, 20, and 23(b)(2)(ii); and

(2)        that Benjamin waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

By signing below, Benjamin acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to its terms and conditions.

STATE ETHICS COMMISSION

[1]  “Particular matter” includes, in relevant part, a contract, decision or determination. G.L. c. 268A, § 1(k).

[2] “Immediate” family includes, inter alia, the employee’s spouse. G.L. c. 268A, § 1(e).

[3]In the Matter of Joseph Turner, 2011 SEC 2370.

[4] 930 CMR 6.16.