Berkhimer v. State Employees' Ret. Bd.
| Decision Date | 14 January 2013 |
| Docket Number | No. 2031 C.D. 2011,2031 C.D. 2011 |
| Parties | Allan C. Berkhimer, Petitioner v. State Employees' Retirement Board, Respondent |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
OPINION BY
Allan C. Berkhimer (Berkhimer) petitions for review of the October 6, 2011 order of the State Employees' Retirement Board (Board), which affirmed the decision of the State Employees' Retirement System (SERS) forfeiting Berkhimer's entire accrued pension benefit following his removal from the office of Magisterial District Judge by the Court of Judicial Discipline.
The underlying facts of this case are not in dispute. Berkhimer was first elected District Judge, now known as Magisterial District Judge, in 1987. He took office on January 4, 1988, at which time he became a member of SERS. Berkhimer was subsequently re-elected in 1993 and 1999. On January 18, 2002, Berkhimerpurchased 3.5 years of service credit for his active-duty, non-intervening military service from September 5, 1972, through March 4, 1976.1
On April 14, 2004, the Judicial Conduct Board filed an initial complaint against Berkhimer. On June 15, 2004, the Judicial Conduct Board filed an amended complaint recommending that Berkhimer be subject to disciplinary action pursuant to Article V, section 18 of the Pennsylvania Constitution based upon a number of factual situations in which Berkhimer directed improper language to his staff, some of which had sexual connotations. The amended complaint alleged that Berkhimer's conduct was so pervasive and extreme that it brought his judicial office into disrepute.
On April 14, 2005, the Court of Judicial Discipline issued an opinion and order finding that Berkhimer's conduct had indeed brought his judicial office into disrepute in violation of Article V, section 18(d)(1) of the Pennsylvania Constitution. On June 28, 2005, the Court of Judicial Discipline issued a final order removing Berkhimer from his judicial office. Berkhimer appealed his removal to the Pennsylvania Supreme Court, which issued an opinion and order on August 20, 2007, affirming the Court of Judicial Discipline's final order.2
By letter dated April 24, 2006, SERS notified Berkhimer that, as a result of his removal from judicial office, his entire accrued pension benefit, including his credited military service, had been forfeited. Berkhimer appealed, and the SERSAppeals Committee stayed the matter pending his appeal of his removal from office to the Supreme Court. Following the Supreme Court's decision, the SERS Appeals Committee denied Berkhimer's appeal, citing Article V, section 16(b) of the Pennsylvania Constitution3 and section 3352(a) of the Judicial Code, 42 Pa. C.S. §3352(a),4 both of which preclude any justice or judge who is suspended or removed from office under Article V, section 18 from receiving a salary, retirement benefit, or other compensation.
Berkhimer appealed to the Board. Berkhimer alleged that the forfeiture of his pension: (1) violates ex post facto provisions of the Pennsylvania Constitution and constitutes an impairment of his retirement contract; (2) violates a liberty interest or due process; (3) results in the diminishment of his judicial compensation in violation of Article V, section 16(a) of the Pennsylvania Constitution; (4) lacks uniform enforcement; and (5) improperly eliminates his purchased military service. Alternatively, Berkhimer alleged that he should maintain his military service credit and state service credit accumulated prior to 1993, when the PennsylvaniaConstitution and relevant statutes were amended to include the forfeiture of retirement benefits.5
The matter was assigned to a hearing officer, who conducted a hearing on June 10, 2010. Berkhimer testified on his own behalf, relating a history of his prior military service and his election and re-elections as a Magisterial District Judge. Berkhimer indicated that he vigorously contested the allegations against him before the Court of Judicial Discipline and was successful in having several charges dismissed, including a charge of misconduct in office. Berkhimer acknowledged, however, that he was found to have brought his judicial office into disrepute as a result of at least ten instances where he used foul, abusive, and sexually connotative language with his female staff. Berkhimer also acknowledged that he was found to have violated Rule 3B of the Rules Governing Standards of Conduct of District Justices by sending congratulatory and sympathy notes to constituents, which the Court described as an ongoing political campaign or a gainful pursuit intended to improve his chances for re-election.6
Dana Shettel, an administrative officer for SERS' bureau of benefit administration, testified regarding the procedural history of the case. Christine Holley, SERS' director of membership services, testified regarding a member's purchase of military service. Holley explained that such service becomes part of amember's retirement account on the date of purchase. Holley noted that Berkhimer chose to purchase his prior military service in 2002 via actuarial debt, which accumulates interest at the rate of four percent and is ultimately deducted from the present value of a member's account when the member retires. Holley specifically testified that SERS standard practice is to include any purchased service in a forfeiture and not allow such service to be re-purchased at a later time. On cross-examination, Holley conceded that the forfeiture provisions of the Pennsylvania Constitution did not come into effect until 1993. Holley was unaware of any other judicial officers who kept their full pensions after their offices were found to be in disrepute.
The hearing officer issued a proposed adjudication and order denying Berkhimer's appeal, with the exception of his 3.5 years of military service credit. The hearing officer allowed Berkhimer to re-purchase this credit. Both Berkhimer and the Board filed exceptions. The Board's exception was limited solely to the military service credit.
In his exceptions, Berkhimer first alleged that the provisions of the Pennsylvania Constitution and Judicial Code are contradictory and preclude forfeiture of his judicial pension. Berkhimer also alleged that the forfeiture of his pension was extremely unfair based upon his improper conduct. Berkhimer's remaining exceptions mirrored his original allegations to the Board regarding ex post facto provisions and impairment of contract, violation of liberty interest or due process, diminishment of his judicial compensation in violation of Article V, section 16(a) of the Pennsylvania Constitution, and lack of uniform enforcement.
On October 6, 2011, the Board issued an opinion and order overruling and dismissing Berkhimer's exceptions and sustaining the Board's exception. TheBoard directed that all of Berkhimer's credited state and purchased non-state military service be forfeited. The Board first held that a review of the constitutional and statutory provisions at issue reveals no inconsistencies or contradictions. Next, the Board stressed that, despite Berkhimer's characterization of his actions as "minor instances of jovial repartee...neither the Judicial Code nor the Pennsylvania Constitution give SERS or this Board any discretion to weigh the magnitude of a disgraced jurist's transgression against the penalties triggered by his or her removal." (Board op. at 3.) Rather, the Board indicated that the explicit text of Article V, section 16(b) of the Pennsylvania Constitution and section 3352(a) of the Judicial Code preclude any jurist removed from office from receiving a retirement benefit.
The Board next rejected Berkhimer's ex post facto and impairment of contract claims, noting that Berkhimer was re-elected in 1993 and 1999, thereby renewing his employment contract with the Commonwealth subject to the law in effect at the time his new term commenced. The Board also noted that Berkhimer's removal occurred long after the forfeiture provisions took effect. In support of its decision, the Board cited Shiomos v. State Employes' Retirement Board, 533 Pa. 588, 626 A.2d 158 (1993), wherein our Supreme Court held that a public official, at every new term of employment, renews his pension contract to include his new public service and to place at risk that which was already earned.7 In other words, a public official's re-election to office renews the official's employment contract subject to the law as it stands at the time the new term of office commences.
The Board next indicated that Berkhimer was afforded due process to contest the forfeiture and never specified or expanded upon the nature of the liberty interest that the Board purportedly violated. Regarding diminution of his judicial compensation, the Board concluded that Berkhimer was fully aware of the 1993 amendments to the Pennsylvania Constitution and Judicial Code and that these amendments did not affect his independence as a Magisterial District Judge or otherwise infringe upon the judiciary's overall independence. Finally, the Board held that Berkhimer failed to present sufficient evidence to establish the purported lack of uniform enforcement of the forfeiture provisions.
Regarding SERS' exception, the Board noted that the testimony of Holley established that Berkhimer's military service credit became part of his retirement account at the time the actuarial debt was established against his retirement benefit, i.e., at the time of purchase. Hence, the Board concluded that such credit, along with any other state service credit accumulated by Berkhimer, was subject to forfeiture. Berkhimer thereafter filed a petition for review with this Court.
On appeal,8 Berkhimer argues that the Board erred in forfeiting his entire accrued pension. We agree insofar as the Board forfeited that part of...
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