EagleTribune.com, North Andover, MA

September 24, 2012

Flaherty renews fight to get pension back

Ex-highway chief in court seeking money stripped after his criminal conviction

By Shawn Regan
sregan@eagletribune.com

---- — HAVERHILL — James Flaherty, the former Haverhill highway chief who resigned amid scandal in 2007 and was later convicted of stealing paving material from the city, is scheduled to be in Boston today fighting for his pension.

His lawyer is trying again to convince a court to restore Flaherty's pension, which was stripped by the city after his criminal conviction.

In June 2011, a Superior Court judge upheld the Haverhill Retirement Board's July 2009 decision stripping Flaherty of his pension as punishment for using his city job to steal. Judge Robert Connetta also ordered Flaherty to repay the board $64,008 that Flaherty collected before his pension was taken away.

The Retirement Board revoked Flaherty's pension three months after he was convicted of felony larceny over $250. Flaherty, 69, also pleaded guilty to three counts of filing false tax returns following a high-profile May 2009 trial in Salem Superior Court.

Flaherty appealed the Superior Court ruling to the state Appeals Court. His lawyer, Scott Gleason of Haverhill, was scheduled to argue the case this morning at the John Adams Courthouse in Boston. The Appeals Court, consisting of three judges, gives each side 15 minutes for oral arguments and makes a written ruling several weeks to several months following those arguments.

Gleason did not return phone calls seeking comment for this story.

In his June 30 ruling, Cornetta ordered Flaherty to return $64,008 of the $148,098 in pension payments he collected between his resignation on April 6, 2007, and the suspension of pension payments on July 14, 2009. The sum represents the difference between the amount he contributed to his pension and the amount the city contributed.

"A review of the facts in the present case demonstrates ... that Flaherty was indeed responsible for the theft of city property over $250 (a felony), that his criminal conduct had a direct connection to his position of public trust as that city's highway superintendent and that his subsequent use of stolen public property in a private business enterprise from which he derived benefit caused significant harm by undermining public confidence," Cornetta wrote in his ruling. "In addition ... Flaherty engaged in the filing of false tax returns and did also plead guilty to three criminal counts in connection with that illicit conduct.

"Taking these facts into consideration and comparing the same to the magnitude of the forfeiture involved, ruling is now entered that there was no error with the meaning (of the law) by the district court judge in his regarding this issue," Cornetta wrote.

In an interview following Cornetta's ruling, Michael Sacco, the Haverhill Retirement Board's attorney, predicted that Flaherty would press on to Appeals Court because there is no case law on the issues being contested.

Flaherty "conceded the conviction was related to his job, although it would have been pretty hard to argue it wasn't," Sacco said in a prior interview. "But they (Flaherty's representatives) proceeded with the idea that it was an excessive punishment. Superior court agreed with the district court that it was not."

In both courts, Gleason argued that revoking the pension violated the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment as well as excessive fines.

Flaherty's $64,744-a-year pension would be worth an estimated $800,000 if he collected it for another decade.

In prior court hearings, Gleason has argued taking away that amount for stealing "$600 worth of dirt from the city" would amount to a "tidal wave of disproportionality."

During the criminal trial, prosecutors refused to estimate how much paving material was stolen. They said the theft was part of a scheme that continued for many years, making it impossible to give an estimate.

The Retirement Board's decision to revoke the pension was first affirmed by Haverhill District Court Judge Stephen Abany in March 2010.

Flaherty was confined to his home for three months as punishment for his crime. His son Kevin, who worked for his father as a supervisor in the Highway Department, was also convicted of stealing city paving material, as well as charging the city for parts for his personal vehicles.

Kevin Flaherty served two months at the Correctional Alternative Center in Lawrence. He was not eligible for a pension because he withdrew all the money he had contributed to his retirement account shortly after he was fired.