EagleTribune.com, North Andover, MA

September 25, 2012

Flaherty argues loss of pension is 'cruel' punishment for stealing dirt

Ex-city highway boss says he only took dirt

By Shawn Regan
sregan@eagletribune.com

---- — HAVERHILL — James Flaherty, the former city highway superintendent convicted of stealing paving material from the city, could have murdered someone and kept his public pension.

But, according to state law, the fact Flaherty was convicted of using his position as highway boss to steal from the city means he forfeits the right to collect the benefit, a lawyer for the Haverhill Retirement Board argued to the state’s Appeals Court panel of judges yesterday.

“The plain language of the law is that you can commit any crime, even murder, and you keep your pension,” attorney Michael Sacco said. “But if you use your job to commit a crime that violates the public trust, you lose it.”

The retirement board revoked Flaherty’s pension three months after he was convicted in May 2009 of felony larceny over $250. Flaherty, 70, also pleaded guilty to three counts of filing false tax returns following a high-profile trial in Salem Superior Court.

A Superior Court and District Court judge have already upheld the retirement board’s July 2009 decision to strip Flaherty of his $64,744-a-year pension, which would be worth an estimated $800,000 if he collected it for another decade. Flaherty’s pension, if is returned, would also transfer to his wife if Flaherty dies before her, potentially increasing its value, Sacco said.

Flaherty appealed the prior court decisions and each side was given 15 minutes for oral arguments yesterday morning at the John Adams Courthouse in Boston. Flaherty attended the proceeding with one of his sons and his lawyers, Scott and Thomas Gleason of Haverhill. Thomas Gleason argued the case.

Gleason’s chief argument is that stripping Flaherty of his pension for “stealing $700 worth of dirt” is disproportional punishment and violates the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment as well as excessive fines.

Sacco argued the intent of the law is to provide a deterrent against public officials violating the public trust. He said the value of the stolen property is irrelevant.

“If he is allowed to keep his pension, the perception will be that you can commit a crime as long as it’s not that bad of a crime,” Sacco said. “The intent of the Legislature was that it’s not just about raw harm. It’s to deter someone in that position from doing harm to the public.”

Sacco also argued that Flaherty’s loss of his pension is “a collateral consequence for the offense” and not a fine.

“A pension is a benefit that requires honorable service (to receive),” Sacco said.

Gleason also argued the pension should be restored because the theft of paving material “was not related to (Flaherty’s) official capacity even though he did it on city time.” For instance, Gleason said, public employees have been convicted of drunk driving on work time and not had their pensions taken away.

“The paving material theft had nothing to do with corruption,” Gleason said. “It’s related only because his job allowed him to do it.”

The paving material, called H-base, is what’s left when a paved driveway is broken up to be redone. During Flaherty’s career in Haverhill, the material was brought back to the city’s highway yard to be stored and eventually recycled into new paving material. Some of the H-base was used by the city and some of it was sold to private contractors. Flaherty was convicted of using it for his private, family-owned paving business.

The two sides are also fighting over how much money, if any, Flaherty must return to the retirement board. This dispute centers around retirement benefits that Flaherty collected between the time he retired shortly after the scandal broke in 2007 and when he was convicted in 2009.

Superior Court Judge Robert Connetta ordered Flaherty to repay the board $64,008 that Flaherty collected before his pension was taken away.

Sacco said Flaherty paid $84,000 into his retirement account prior to filing for benefits, and that he collected $148,000 before payments were stopped. The retirement board wants the difference back, about $64,000.

The Appeals Court, consisting of three judges, is expected to make a written ruling in several weeks to several months.

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.