Settlement  Disposition Agreement in the Matter of Steven Mscisz

Date:	06/25/2024
Organization:	State Ethics Commission
Docket Number:	24-0017
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 Steven Mscisz (“Mscisz”) 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 Mscisz. On December 21, 2023, the Commission concluded its inquiry and found reasonable cause to believe that Mscisz violated G.L. c. 268A, §§ 19, 20, and 23(b)(2)(ii).

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

Findings of Fact

1. Mscisz served on the Town of Topsfield (“Town”) Parks and Cemeteries Commission from the early 1990s to 2020.
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, 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. Mscisz and Commissioner Robert Benjamin (“Benjamin”) 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. Mscisz was Commission Chair at the relevant time.
6. Mscisz sought burial plots for multiple family members and was informed by the cemetery superintendent that the area referred to as the “D.C. Circle Block” in the Pine Grove Cemetery was a suitable location to accommodate his family. Mscisz understood that the D.C. Circle Block was not yet engineered or available for immediate burial, but that it could include enough space for all of his family members - at least twenty plots.
7. Mscisz proposed that he and Benjamin purchase what was at the time the entire D.C. Circle Block area. Benjamin agreed to do so.
8. Mscisz understood and intended that, with the April 11, 2017 vote, he and Benjamin would receive the benefit of preferential access to plots in the D.C. Circle Block area, as it then existed, for themselves and their respective families.
9. 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 engineered or available for purchase. Plots would become available for burial after engineering was complete. The D.C. Circle Block area was cleared after Mscisz’s April 11, 2017 motion, and was large enough to accommodate at least thirty plots.
10. At the relevant time, available Town cemetery burial plots cost $1,000 each to purchase.
11. On May 15, 2019, the Town issued to Mscisz and his brother, on behalf of their respective estates, a deed to a lot including multiple plots in the D.C. Circle Block area of Pine Grove Cemetery upon payment of $5,000. The plots were not individually identified by number in the deed. Instead, the deed described the D.C. Circle Block boundaries and did not specifically delineate the plots previously sold to Benjamin in the D.C. Circle Block.
12. At the time he was issued the deed to the cemetery lot, Mscisz understood and intended his $5,000 payment to be full payment for the lot, which could accommodate well more than 5 plots.
13. On March 23, 2023, the Topsfield Town Administrator sent a letter to Mscisz by certified mail stating that the circumstances of Mscisz’s purchase of cemetery plots raised “serious concerns under the Conflict of Interest Law;” that Mscisz had expressed his belief during a January 23, 2023 meeting with the Town Administrator that he owned “all 24 plots;” and that Mscisz “had rights” to only 5 plots, but could if he wished purchase the 19 additional plots for $19,000.

14. On August 22, 2023, after the death of his wife, Mscisz’s family paid the Town an additional $25,000 for a total of 30 burial plots. Thus, Mscisz and his family wound up paying a total of $30,000 for 30 burial plots - ultimately paying the then established price of $1,000 per plot.

    Conclusions of Law

    Section 19 Violation

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.
16. As Topsfield Parks and Cemeteries Commission Chair, Mscisz was, at all relevant times, a municipal employee as defined by G.L. c. 268A, § 1(g).
17. The transfer of ownership of the Town cemetery lot with space multiple plots to the estates of Mscisz and his brother, including the motion and vote to transfer the lot, was a particular matter.
18. Mscisz participated in the particular matter of the cemetery lot transfer by making the motion on April 11, 2017, “[F]or the consideration of a lifetime of service and dedication to Parks and Cemetery… and for a stipend of $5,000.00 the Park and Cemetery will name a block the ‘Mscisz Family Block’” which authorized the transfer of the cemetery lot with space for at least 24 plots to Mscisz, and voting in favor of the motion.
19. Mscisz and his brother had, to his knowledge, a financial interest in the transfer of the ownership of the Town cemetery lot with space for well more than 5 plots to them and their respective estates.

20. Therefore, by, as Topsfield Parks and Cemeteries Commission Chair, making the motion to transfer the cemetery lot with space for well more than 5 plots to himself and his immediate family and their respective estates and by voting in favor of the motion as Parks and Cemeteries Commission Chair, Mscisz violated § 19.

    Section 23(b)(2)(ii) Violation

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. Mscisz 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. Mscisz’s initial purchase of a lot in the Pine Grove Cemetery with space for well more than 5 plots for $5,000 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 Mscisz, at the time, paid only $5,000 for a cemetery lot with space for well more than 5 plots.
25. Mscisz used his official position as Parks and Cemeteries Commission Chair to secure this unwarranted privilege by making the April 11, 2017 motion to transfer the multiple-plot lot to be named “The Mscisz Family Block” to himself and his family, and to transfer to Benjamin and his family the multiple-plot lot to be named “The Benjamin Family Block,” and voting in favor of the motion.
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. Therefore, by using his municipal position to initially purchase a cemetery lot with space for well more than 5 plots for $5,000, when plots cost everyone else $1,000 each, Mscisz knowingly or with reason to know, used his official position as Parks and Cemeteries Commission Chair to secure for himself and his brother, an unwarranted privilege of substantial value that was not properly available to similarly situated individuals. In so doing, Mscisz violated § 23(b)(2)(ii).
27. In addition, Mscisz’s preferential access, along with Benjamin, 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.
28. This unwarranted privilege was of substantial value given that it provided Mscisz and Benjamin 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]
29. Mscisz secured this unwarranted privilege through the use of his position as Parks and Cemeteries Commission Chair.

30. Therefore, by using his municipal position to secure for himself and Benjamin and their respective family’s preferential access to cemetery plots in the previously undeveloped D.C. Circle Block area of Pine Grove Cemetery before any other resident, Mscisz 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, Mscisz violated § 23(b)(2)(ii).

    Section 20 Violation

31. 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.
32. The deed issued by the Town transferring the lot and its multiple plots in the Town Pine Grove Cemetery to Mscisz and his family was a contract made by a municipal agency of the Town in which the Town was an interested party.
33. Mscisz knew he had a financial interest in the deed at the time it was issued to him and at all relevant times thereafter.
34. 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 Mscisz originally purchased them. Thus, the exemption does not apply. Therefore, by, while serving as Parks and Cemeteries Commission Chair, having to his knowledge a financial interest in a contract with the Town, Mscisz violated § 20.

Disposition

In view of the foregoing violations of G.L. c. 268A by Mscisz, 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 Mscisz:

1. that Mscisz pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $14,000 as a civil penalty for violating G.L. c. 268A, §§ 19, 20, and 23(b)(2)(ii); and
2. that Mscisz 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, Mscisz 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 brother. G.L. c. 268A, § 1(e).

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

[4] 930 CMR 6.16.