HomeMy WebLinkAbout1171 ScarpatiIn Re: Thomas Scarpati
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
99- 063 -C2
Order No. 1171
12/12/00
12/27/00
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding a possible violation of the Public Official and Employee Ethics
Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." An Answer was not filed and a hearing was waived. The
record is complete. A Consent Agreement was submitted by the parties to the Commission
for consideration which was subsequently approved.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter
11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion
of pending matters under Act 93 of 1998.
This adjudication of the State Ethics Commission is issued under Act 93 of 1998
and will be made available as a public document thirty days after the mailing date noted
above. However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with Chapter 11 of Act
93 of 1998. Any person who violates confidentiality of the Ethics Law is guilty of a
misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than
one year. Confidentiality does not preclude discussing this case with an attorney at law.
Scarpati, 99- 063 -C2
Page 2
I. ALLEGATION:
That Thomas Scarpati, a public official /public employee in his capacity as a member
of the Hazelton Area School District Board of Directors, violated Section 1103(a) of the
State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private
pecuniary benefit by participating in actions of the school board of directors to authorize
the school district to pay for legal fees and expenses in regards to the filing of a personal
civil action seeking punitive damages in excess of $25,000 for themselves.
II. FINDINGS:
1. Thomas Scarpati has served as a member of the Hazleton Area School Board since
December 5, 1997.
2. On August 26, 1998, the district as part of the process of hiring new teachers,
decided to hold second interviews in a forum open to the public.
a. Second interviews were held before board members Pesock, Scarpati,
Temborski, and Durso, with questions of applicants being posed by
Superintendent Geraldine Shepperson.
3. During the public interviews, Demetria Deakos, a district resident, attempted to
videotape the interviews.
a. Board members Pesock and Scarpati objected to Deakos videotaping the
interviews.
b. Deakos refused to stop taping the interviews and was asked to leave the
meeting. The Pennsylvania State Police were contacted to remove Deakos
from the meeting.
4. Demetria Deakos subsequently filed, with District Justice Thomas J. Sharkey,
harassment charges against the Hazleton Area School District #CR- 932 -98, Gloria
Pesock, # CR- 933 -98, Thomas Scarpati, # CR- 934 -98, and Geraldine Shepperson,
#CR- 935 -98, on or about October 1, 1998.
5. The harassment charges against the school district, Gloria Pesock and Thomas
Scarpati arose from board members Scarpati and Pesock refusing to permit her to
videotape the interviews of August 26, 1998.
6. The harassment charges against Superintendent Shepperson arose from a
separate dispute with Deakos during a public meeting on or about September 9,
1998.
7 Pittsburgh based attorney Ira Weiss was retained by the HASD to defend the
district, Pesock, Scarpati and Shepperson in the harassment charges filed by
Deakos.
Scarpati, 99- 063 -C2
Page 3
a. Attorney Weiss had previously provided the district with legal services
relating to bond issues and tax exemptions.
8. The harassment suits against the district, Pesock, Scarpati, and Shepperson were
the result of actions occurring in their official capacity as NASD board members and
superintendent.
9. Hearing on the harassment charge was held before District Justice Thomas
Sharkey on December 2, 1998.
10. After hearing evidence in the four (4) cases, Justice Sharkey dismissed all four (4)
harassment charges.
11. The NASD incurred legal fees totaling approximately $1,301.25 for - -- the hiring of
Weiss [as] to the four (4) harassment suits filed by Deakos.
12. NASD made payment to Ira Weiss to cover legal expenses incurred defending the
harassment suits.
a. This payment was approved by the board during their January 18, 1999,
meeting.
13. Scarpati in his official capacity as a NASD board member voted to approve
payment in the amount of $1,301.25 to Ira Weiss for legal services associated
with the harassment charge against him.
a. This amount was approved for payment by the board during their January
18, 1999, meeting.
b. Bills to be paid were approved by a 7 -0 -1 vote with one (1) board member
absent.
14. An executive session was held during the board's February 24, 1999, meeting to
discuss recovering legal fees incurred defending the harassment suits.
a. Board Members Pesock, Scarpati, Durso, Cain, Schnee, Rossi, Tombasco,
and Temborski were present for this executive session.
b. The majority view of the board members present was that something had to
be done to stop the filing of lawsuits against district officials deemed to be
frivolous in nature and [to] recover legal expenses previously incurred.
15. During the public portion of the board's February 24, 1999, meeting the following
discussion and official action occurred to recover legal expenses:
Scarpati, 99- 063 -C2
Page 4
"The Secretary presented to the Board, the recommendation to authorize the
appropriate legal procedures to recover legal expenses.
Pesock and Scarpati moved that the recommendation be approved as presented.
Rossi and Tombasco moved that the motion be amended to state that the Board
authorizes Scarpati and Pesock to proceed to be defended as discussed in
Executive Session. On roll call, the amendment failed by the following vote."
AYES: Rossi and Tombasco 2
NAYS: Cain, Durso, Pesock, Scarpati, Schnee, and
Temborski 6
ABSENT: Scarcella 1
On roll call for the original motion, the recommendation prevailed by
the following vote:
AYES: Cain, Durso, Pesock, Scarpati, Schnee, and Temborski 6
NAYS: Rossi and Tombasco 2
ABSENT: Scarcella 1
16. On March 16, 1999, a complaint in civil action was filed by Ira Weiss on behalf of
the Hazelton Area School District, Geraldine Shepperson, Thomas Scarpati, and
Gloria Pesock in the Court of Common Pleas of Luzerne County, Pennsylvania.
a. Demetria Deakos is the only named defendant.
b. Civil Division Case No. 1730 C 1999 was assigned to the suit.
17. Paragraph 18 in the civil suit seeks "a sum in excess of twenty -five thousand
($25,000) dollars and punitive damages, exclusive of interest and costs:
a. The district incurred costs totaling approximately $1,301.25 defending the
four (4) harassment suits.
18. On February 23, 1999, Thomas Scarpati signed the following certification which
was included as part of the civil action filed:
VERIFICATION
"I, Thomas Scarpati, hereby verify that the facts contained in the foregoing
Complaint in Civil Action are true and correct to the best of my knowledge,
information and belief.
Scarpati, 99- 063 -C2
Page 5
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S.A. §4904, relating to unsworn falsification to authorities."
a. Respondent understood that his signature on the Verification was a
requirement for the pleading and in order for the pleading to be filed had
to be signed in order for the school district to recoup the costs of the
frivolous action by Deakos.
19. HASD had expended funds totaling approximately $1,301.25 at the time Scarpati
participated in board actions authorizing the civil action to be filed seeking
($25,000) plus punitive damages, interest and costs.
20. The motion passed by the HASD during their February 24, 1999, meeting to
recover legal fees did not include any language seeking additional monetary
damages or award.
a. Upon Advice of Counsel, all causes of actions were consolidated into a
single pleading.
b. It was the board's intent to seek recovery of Weiss's fees for defending
the harassment charges filed by Deakos.
21. The $25,000.00 demand was included by attorney Ira Weiss in preparing the
civil action claim.
a. Scarpati gave his approval to the $25,000.00 demand when he signed the
claim verification contained in the civil complaint.
22. Since February 23, 1999, when the district filed the suit against Deakos, the
District has incurred additional costs totaling approximately $604.50 to file suit
against Demetria Deakos.
23. HASD business records include four (4) invoices submitted by Ira Weiss for
legal services rendered regarding Hazleton Area School District et al v. Deakos.
Invoices detailed the following legal services provided:
Invoice Date Amount Nature of Service
a. 03/31/99 $91.50 Filing of Complaint ($55.50)
Service of Complaint ($36.00)
b. 04/06/99 $71.25 Review Brady Letter
c. 05/31/99 $47.50 Letter /Correspondence ($47.50)
Scarpati, 99- 063 -C2
Page 6
d. 07/28/99 $394.25 Research ($394.25)
24. The invoice referenced in 23(a) above related to the filing and service of the
complaint in the matter of Hazleton Area School District et al v. Deakos.
25. The invoices referenced in 23(b -d) above related to issues involving the school
district's insurance as such related to the litigation and did not relate specifically
to Scarpati.
26. Invoices submitted by Weiss for payment are included as part of the district's
monthly bill lists.
a. Bill lists are voted on in their entity by a single motion.
b. Bill lists are included as part of the board members meeting packets.
c. Meeting packets are provided to the board members approximately three
(3) to five (5) days prior.
27. HASD records reflect Scarpati participated in approving legal fees paid to Ira
Weiss as follows:
a.
Invoice Invoice Meeting Recorded Official
Date Amount Date Vote Action
03/31/99 $ 91.50 04/08/99 8 -1 -0 Vote
04/30/99 $ 71.25 05/27/99 6 -0 -0 (3) Absent Vote
05/31/99 $ 47.50 06/28/99 6- 1 -0 -(2) Absent Vote
07/28/99 $394.25 08/12/99 5- 1 -0 -(3) Absent Vote
Total $604.50
b. Scarpati participated in official board action taken to approve four (4)
payments totaling $604.50 to Ira Weiss for legal services associated with
the civil suit.
28. Scarpati received a benefit equal to one quarter of the filing and service fees
($91.50) which amounted to $22.88.
29. Scarpati has agreed to pay his proportionate share of litigation expenses and his
own fees in conjunction with the Luzerne County Civil Action filed to Docket No.
1730 -C of 1999.
30. The Hazleton Area School District has incurred no adverse economic impact.
Scarpati, 99- 063 -C2
Page 7
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Thomas Scarpati, hereinafter
Scarpati, has been a public official subject to the provisions of the Public Official and
Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified
by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S.
§1101 et seq., which Acts are referred to herein as the "Ethics Act."
The issue is whether Scarpati violated Section 1103(a) of the Ethics Act as to the
allegation that as a public official, he used the authority of his office for a private pecuniary
benefit by participating in actions of the Hazleton Area School Board to authorize the
Hazleton Area School District to pay for litigation expenses incurred in connection with a
civil action filed on behalf of Scarpati and others.
Pursuant to Section 1103(a) of the Ethics Act quoted above, a public official /public
employee is prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989 as follows:
Section 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. "Conflict" or "conflict of interest" does not
include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry,
occupation or other group which includes the public official or
public employee, a member of his immediate family or a
business with which he or a member of his immediate family is
associated.
65 Pa. C.S. §1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
facts.
Having noted the issues and applicable law, we shall now summarize the relevant
Scarpati has served as a member of the Hazleton Area School Board (School
Board) since December 5, 1997.
On August 26, 1998, while the Hazleton Area School District (School District)
conducted public interviews for prospective teachers, Demetria Deakos (Deakos), a private
citizen, attempted to capture the interviews on videotape. When Board members Scarpati
Scarpati, 99- 063 -C2
Page 8
and Gloria Pesock (Pesock) objected to Deakos videotaping the interviews, Deakos filed
harassment charges against Scarpati, Pesock and the School District in District Justice
Thomas J. Sharkey's office. Deakos also filed harassment charges against School District
Superintendent, Geraldine Shepperson (Shepperson) for an unrelated incident.
The School District retained Ira Weiss (Weiss), a private attorney, to defend the
harassment charges against Scarpati and the others. Weiss successfully persuaded
District Justice Sharkey to dismiss the charges against all four defendants for which he
charged the School District $1,301.25. In order to recoup the legal expenses related to the
harassment suit and to discourage the filing of frivolous actions against Board members,
the School Board Secretary, at the Board's February 24, 1999, public meeting, presented a
recommendation to "authorize the appropriate legal procedures to recover legal
expenses." Scarpati and Pesock moved that the recommendation be approved as
presented. Accordingly, on March 16, 1999, Weiss filed a civil complaint in the Court of
Common Pleas of Luzurne County on behalf of Scarpati, Pesock, the School District, and
Shepperson seeking punitive damages against Deakos in excess of $25,000.00 exclusive
of interest and costs.
Weiss submitted several invoices to the School District relating to the litigation
against Deakos. Weiss's invoices were included as part of the School District's monthly
bill lists which were voted on in their entirety by a single motion. Between April 8, 1999,
and August 12, 1999, Scarpati voted on four separate occasions to approve invoices to
pay Weiss for legal services associated with the Deakos lawsuit, including an invoice in
the amount of $91.50 for the filing and service of the complaint. Scarpati agreed to pay his
proportionate one quarter share of the filing and service fees which amounted to $22.88.
Having summarized the above relevant facts, we must now determine whether the
actions of Scarpati violated Section 1103(a) of the Ethics Act.
The parties have submitted a Consent Agreement together with a Stipulation of
Findings wherein they propose to resolve the case by finding no violation of Section
1103(a) of the Ethics Act in relation to Scarpati's participation in the Hazleton Area School
Board's action to authorize the Hazleton Area School District to file a lawsuit on behalf of
Scarpati and others, as the private pecuniary benefit was de minimis; Scarpati agreeing to
make a payment of $22.88 within 30 days of the issuance of this Order through this
Commission to the Hazleton Area School District, which payment represents the
(proportionate share of the) funds expended by the School District in connection with the
lawsuit filed on behalf of Scarpati and others; and Scarpati agreeing to pay a proportionate
one quarter share of all future litigation expenses borne in conjunction with the furtherance
of the aforementioned litigation.
As to Section 1103(a) of the Ethics Act, Scarpati made the motion to approve a
recommendation to "authorize the appropriate legal procedures to recover legal
expenses." Scarpati also voted to pay Weiss's legal fees, including the filing and service
fees incurred in connection with the civil suit filed against Deakos. Such actions were uses
of authority of office. See, Juliante, Order 809. The uses of authority of office by Scarpati
resulted in a private pecuniary benefit to himself since he did not have to pay $22.88 for
the filing and service fees which were paid by the School District. Since Scarpati and the
others did not have to personally pay these fees, they were enhanced by the out -of- pocket
expenses they would otherwise have had to pay. In this regard, the Commission has
stated that litigation involving a public official acting in his official capacity with no element
of wrongdoing warrants representation at the municipality's expense. See, Hessinger,
Order 931; Wasiela, Order 932. In the instant case, however, it is clear that the lawsuit
filed against Deakos was private in nature in that the complaint was not filed on behalf of
Scarpati as a School Director acting in his official capacity, but was filed in order to recoup
the legal fees that the School District had to pay to Weiss to defend the harassment suits.
The fact that the complaint seeks punitive damages far in excess of the legal fees actually
Scarpati, 99- 063 -C2
Page 9
expended by the School District in defending the harassment charges is further indicative
of the private nature of the litigation.
Although Scarpati received a pecuniary benefit by not having to pay his share of the
filing and service fees, we find that such benefit falls within the exclusion within Section
1103(a) of the Ethics Act regarding an action having a de minimis economic impact." 65
Pa.C.S. §1103(a). In this case, given that Scarpati's proportionate one quarter share of
$22.88 is nominal, we conclude that the pecuniary benefit he received is de minimis. See,
Schweinsburq, Order 900 wherein we concluded that the receipt of $61.20 by a township
supervisor who performed certain work for the township did not constitute a violation of
Section 3(a) of Act 9 of 1989 under those circumstances. For similar reasons, we find no
violation of Section 1103(a) of the Ethics Act by Scarpati in this case.
As to the Stipulation of Findings and Consent Agreement, we believe that the
Consent Agreement is the proper disposition for this case based upon our review as
reflected in the above analysis and the totality of the facts and circumstances.
Accordingly, Scarpati is directed to make a payment of $22.88 within 30 days of the
issuance of this Order through this Commission to the Hazleton Area School District, which
payment represents his proportionate one quarter share of the funds expended by the
School District in connection with the lawsuit filed on behalf of Scarpati and others; and to
pay a proportionate one quarter share of all future litigation expenses borne in conjunction
with the furtherance of the aforementioned litigation. Compliance with the foregoing will
result in the closing of this case with no further action. Noncompliance will result in the
institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Scarpati, as a member of the Hazelton Area School District Board of Directors, is a
public official subject to the provisions of Act 93 of 1998, Chapter 11.
2. Scarpati did not violate Section 1103(a) of the Ethics Act when he made the motion
to approve a recommendation to authorize the School District to take appropriate
legal procedures to recover legal expenses incurred in relation to defending the
harassment charges against Scarpati and the others, and voted to pay legal fees,
including the filing and service fees expended in connection with the civil suit filed
against Deakos, as the resultant pecuniary benefit was de minimis.
In Re: Thomas Scarpati
ORDER NO. 1171
File Docket: 99- 063 -C2
Date Decided: 12/12/00
Date Mailed: 12/27/00
1 Scarpati, as a member of the Hazleton Area School Board, did not violate Section
1103(a) of the Ethics Act when he made the motion to approve a recommendation
to authorize the School District to take appropriate legal procedures to recover legal
expenses incurred in relation to defending the harassment charges against Scarpati
and the others, and voted to pay legal fees, including the filing and service fees
expended in connection with the civil suit filed against Deakos, as the resultant
pecuniary benefit was de minimis.
2. As per the Consent Agreement, Scarpati is directed to make a payment of $22.88
within 30 days of the issuance of this Order through this Commission to the
Hazleton Area School District, which payment represents his proportionate one
quarter share of the funds expended by the School District in connection with the
lawsuit filed on behalf of Scarpati and others; and to pay a proportionate one
quarter share of all future litigation expenses borne in conjunction with the
furtherance of the aforementioned litigation.
a. Compliance with the foregoing will result in the closing of this case with no
further action by the Commission.
b. Noncompliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
DANEEN E. REESE, CHAIR