Luzerne County Judges

February 19, 2010

Two judges appeal denial of pensions

Conahan’s and Ciavarella’s attorneys say law was interpreted wrongly.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
Terrie Morgan-Besecker on Facebook   |   @TLTerrieMorgan on Twitter

HARRISBURG – A state agency’s decision to deny former Luzerne County judges Michael Conahan and Mark Ciavarella their pensions was based on a flawed interpretation of the law and should be overruled, attorneys for the ex-jurists say in an amended appeal.

The appeal, filed with the State Employees’ Retirement System’s board of directors, contends the agency’s staff has no legal basis upon which to withhold the benefits given that Conahan and Ciavarella withdrew their guilty pleas to the charges that triggered the forfeiture.

SERS staff determined in June that the ex-judges had forfeited their pensions based on their Feb. 12 guilty pleas to honest services fraud and tax evasion. The decision was based on the Pension Forfeiture Act, which allows for the denial of pension benefits to persons convicted of certain crimes related to their public employment.

A dispute over their eligibility re-erupted in August, when Conahan and Ciavarella withdrew their guilty pleas after U.S. District Judge Edwin Kosik rejected the terms of the deal.

Conahan and Ciavarella then sought to restore their pension benefits, arguing that their guilty pleas were conditional. Because the pleas were withdrawn, the basis for the forfeiture decision no longer existed.

But staff members with SERS who were evaluating the claims for benefits disagreed. In a Dec. 21 decision, SERS official David Durbin said the withdrawal of the guilty pleas did not technically void the entry of the pleas as far as determining whether the pensions were forfeited.

In an amended appeal filed last month, attorney Al Flora Jr., who represents Ciavarella, and attorney Philip Gelso, who represents Conahan, again argue that the withdrawal of the guilty pleas invalidates the forfeiture action.

“It is recognized that when a court rejects a conditional plea agreement . . . the plea is invalidated, there is no adjudication of guilt and the parties are returned to their original position before any plea was entered,” the appeal says.

The attorneys bolster their position by citing a provision of the Forfeiture Act, which allows for pension benefits to be restored if a person convicted of a forfeitable crime later overturns that conviction on appeal.

In a response Feb. 8, SERS argues it makes no difference whether the pleas entered were “conditional” or not.

“SERS denies that said guilty plea was any different than any other guilty plea,” Paul M. Stahlnecker, an attorney for SERS, says in a response to Conahan’s appeal. “Claimant in fact entered a guilty plea to the charge of honest services wire fraud on Feb. 12, 2009 . . . . His subsequent withdrawal of said guilty plea does not render his previous admissions void.”

Conahan, who retired in January 2008, had been receiving a monthly payment of $8,073.87 until his benefits were stopped in April. Ciavarella applied for benefits on March 16. He never received a check, however, because he entered his guilty plea prior to his resignation.

Robert Gentzel, spokesman for SERS, said a hearing will now be scheduled before a hearing examiner, who acts much like a judge would at a civil trial. The examiner will take testimony and review documents, then provide a written recommendation for the SERS’ board of directors to consider.

Gentzel said he expects it will be several months before the hearing, which is open to the public, is scheduled. Once the board rules, if the decision goes against Conahan and Ciavarella they could appeal to the state Commonwealth Court.

Tweet	Follow @TLnews

Send Question or Remark to the Publisher