Ex-judges argue for full pension

HARRISBURG – Former Luzerne County judges Mark Ciavarella and Michael Conahan contend they are entitled to their full pensions because the federal crimes to which they pleaded guilty are not “substantially similar” to state law crimes that trigger the loss of retirement benefits.

The appeals, filed last month with the State Employees’ Retirement Board, also argue that a $4.3 million claim made against their pensions by the state Department of Public Welfare is based on several flawed assumptions and should be dismissed.

Conahan also is challenging the demand that he repay more than $21,000 in pension benefits he received following his Feb. 12 guilty plea to federal charges. Conahan contends he received those benefits in good faith based on the agency’s previous determination that he was entitled to the money, therefore he should not be required to pay it back.

The SERS initially paid Conahan his monthly benefit of $8,073.87, based on the belief that a “conviction” did not become official until the time of sentencing. It later reversed its decision based on further analysis of the law. His payments were stopped in April. SERS is now seeking reimbursement of the $21,261.19 he was paid from Feb. 12 to April 30.

The heart of the forfeiture appeals focus on the legal interpretation of the crimes delineated within the pension forfeiture act that trigger the loss of retirement benefits.

The act mandates forfeiture for persons who are convicted of certain state law crimes that are committed through their public service. It also applies to federal crimes that are deemed to be “substantially similar” in nature to the specified state law crimes.

In the judges’ case, they pleaded guilty to charges of honest services fraud and tax evasion. SERS contends that the honest services charge is substantially similar to the state crimes of obstructing the administration of law or other governmental function and tampering with public records – which are among the 21 specified crimes that trigger forfeiture.

The judges, who filed separate appeals, both cite the same legal argument that neither the obstruction nor the tampering charge equate to honest services fraud.

Ciavarella and Conahan contend the honest services charge relates solely to their failure as judges to disclose conflicts of interests and financial relationships they had with Robert Powell, the owner/operator of juvenile detention facilities the county utilized, and their failure to report that income on their annual statements of financial interest filed with the state.

The judges argue the obstruction statue involves the use of “force, violence, physical interference or obstacle or breach of official duty.” That statue specifically excludes a failure to perform a legal duty, they say.

“By design, Pennsylvania’s obstruction statute is not intended to criminalize a public official’s failure to disclose a conflict of interest,” the appeal says.

As for tampering with public records, the judges say SERS has failed to present any evidence that identifies any record that they allegedly tampered with.

The judges also take issue with the claim DPW filed that seeks reimbursement for $4,334,921 in additional costs the department says it incurred to house juveniles at the PA Child Care Center in Pittston Township instead of the county’s own facility, which was shut down by Conahan in 2002.

A copy of the claim, obtained from SERS under the Right to Know Act, shows that DPW arrived at that figure by subtracting the daily rate the county charged in 2002 ($160) from the daily rate PA Child Care charged (which ranged from $268 to $302 from 2002 to 2008). It then multiplied that number by the number of placements, seeking reimbursement for the difference for each year from 2002 to 2008.

The calculation also takes into account additional placements of youths at PA Child Care that DPW contends were not necessary, but were done to ensure a high occupancy rate at the facility.

DPW reached that figure by analyzing the average placement rate in the three years prior to the opening of PA Child Care, then comparing that to placement rates after its opening. DPW then multiplied the difference in that number by the average daily rate charged by detention providers in the region to determine the restitution it’s owed.

The judges maintain those calculations are based on flawed logic, including the assumption that the county would have continued to charge a daily rate of $160 (the rate it charged in 2002) over the next six years.

They also argue that they are being charged for youths who were placed at the facility by other judges and that DPW has not provided any evidence to prove that youths were inappropriately detained.

Robert Gentzel, spokesman for SERS, said the agency will now file a response to the former judges’ appeal. An evidentiary hearing, which is open to the public, will then be scheduled in Harrisburg. A date for that hearing has not yet been set.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

Clear 30°

News

Appeals by Ciavarella and Conahan also take issue with $4.3M claim by state DPW.

Place Quick Ads