EagleTribune.com, North Andover, MA

January 24, 2013

Flaherty to continue fight for pension

Lawyer: Appeal will go to state's highest court, even federal level

By Shawn Regan

---- — HAVERHILL — Full speed ahead.

That was the response from James Flaherty’s lawyer when asked if his client intends to continue a legal fight to win back his $64,744-a-year pension.

The city’s Retirement Board revoked the pension in 2009, after the former Haverhill Highway Department superintendent was convicted of stealing from the city. A state Appeals Court decision released last week affirmed prior rulings from a superior court and district court that upheld the decision to strip Flaherty, 70, of his pension. According to the court ruling, the pension is worth $940,000, based on Flaherty’s life expectancy, and includes health benefits for him and his wife.

Flaherty’s attorney, Scott Gleason, said he will ask the state’s highest court — the Massachusetts Supreme Judicial Court — to review the case. If that court declines, Gleason said he will take the fight to federal court on constitutional grounds. Flaherty has 20 days from his latest court loss to file an appeal with the Supreme Judicial Court, which has discretion to accept or decline the case.

“We disagree with the Appeals Court that a 47-year career, pension worth $1 million, that was earned with blood, sweat and tears, should be taken away for the theft of $500 worth of dirt,” Gleason said of Flaherty’s conviction for stealing paving material from the city. “After we exhaust our options in state court, we’ll go to federal court if we have to. We’re going all the way.”

In May 2009, Flaherty was convicted by a jury of felony larceny over $250 and pleaded guilty to three counts of filing false tax returns following his trial in Salem Superior Court. He was also indicted but found not guilty of procurement fraud and improper compensation by a municipal employee.

Three months later, the city’s Retirement Board revoked Flaherty’s pension, based on a law that states a person convicted of using his public position to steal from the public forfeits the right to collect the benefit.

Gleason said many public officials in Massachusetts, including some right here in Haverhill, have committed more serious crimes but were allowed to keep their pensions.

The Appeals Court also ruled Flaherty must repay the Retirement Board $64,008 which he collected before his pension was taken away. That amount represents the difference between the $84,000 that Flaherty paid into his retirement account prior to filing for benefits and the $148,000 he collected before payments were stopped.

In court, Gleason has argued that stripping Flaherty of his pension for stealing a few hundred dollars 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.

During Flaherty’s trial, prosecutors argued it was impossible to say for sure how much paving material Flaherty stole because the theft took place over many years.

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 some of the material for his private, family-owned paving business.

“We’re, of course, pleased with the decision,” Michael Sacco, attorney for the Retirement Board, said last week about the Appeals Court decision. “It’s important that public employees be held to a standard in which they can’t commit a crime related to their public position and still receive a pension.”

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.

Following his trial in the summer of 2009, Flaherty was sentenced to six months in Middleton Jail and three and a half years of probation. He ultimately served less than three months of the jail sentence confined to his Haverhill home. His probationary period ended last week.