January 18, 2013
Former Luzerne County Deputy Chief Clerk Bill Brace's $740.46 monthly county pension should be restored because the county Retirement Board never had a hearing when it was revoked, his lawyer argued in court this week.
Brace is appealing a federal judge's decision to uphold the retirement board's cancellation of his pension based on his guilty plea to a corruption charge. As part of that appeal, a hearing was held this week before a three-judge panel in the Third Circuit Court of Appeals in Philadelphia.
Representing Brace, Scranton attorney Carl Poveromo contended the retirement board hastily canceled the pension without providing an opportunity for Brace to argue against the decision.
He said the board had obtained a court ruling before voting to withhold the pension of another clerk of courts employee, Dolores Seacrist, when she was found guilty of criminal attempt and conspiracy, and he questioned why a similar ruling wasn't sought for Brace's pension.
Poveromo also said he doesn't believe the county has latitude to cancel Brace's pension under the state's pension forfeiture act, which precludes public employees from receiving a pension if they are convicted of certain state crimes related to their employment.
The law applies to federal convictions in which the crime committed is substantially similar to the state law crimes detailed in the forfeiture act.
In Brace's case, the county argued Brace's guilty plea to corrupt receipt of a reward for official action was substantially similar to the state crime of bribery in official and public matters.
But Poveromo told the appeal panel Brace could not be found guilty of bribery under state law because it requires receipt of a benefit in exchange for official action.
Brace received a tailor-made suit as a reward or gratuity for supporting the efforts of a contractor who already had been given a contract, Poveromo said.
He did not receive a suit in exchange, he said. There was no quid pro quo.
U.S. District Judge A. Richard Caputo had concluded Brace was not entitled to a pension-termination hearing and said the bribery and corrupt receipt of a reward crimes were similar enough to trigger the forfeiture act.
The county was represented by attorney Joel Wolff of Elliott, Greenleaf & Siedzikowski in Scranton, and Howard Flaxman, of Fox Rothschild LLP in Philadelphia.
Both attorneys cited Poveromo's failure to furnish any case law showing Brace had a right to due process for the cancellation of a government pension.
Wolff said Brace should have filed legal action in county court if he disagreed with the retirement board's interpretation of the forfeiture act.