O'Neill v. State Employees' Ret. Sys.
| Decision Date | 16 August 2022 |
| Docket Number | 25 EAP 2021,No. 25 EAP 2021 |
| Citation | 280 A.3d 873 |
| Parties | Joseph J. O'NEILL, Appellant v. STATE EMPLOYEES' RETIREMENT SYSTEM, Appellee |
| Court | Pennsylvania Supreme Court |
Michael J. Engle, Esq., Ashley Eve Shapiro, Esq., Ryan Aloysius Smith, Esq., Armstrong Teasdale LLP, Philadelphia, PA, for Appellant
Catherine Nolan, Esq., Carly Jeanne Wismer, Esq., Pennsylvania State Employees' Retirement System (PSERS), Harrisburg, PA, for Appellee
OPINION
Pennsylvania's Public Employee Pension Forfeiture Act ("Act 140")1 mandates the forfeiture of the pension of a public official or public employee when he or she is convicted of certain Pennsylvania crimes related to public office or public employment, or is convicted of federal offenses that are "substantially the same" as the forfeit-triggering state crimes. 43 P.S. §§ 1312, 1313. We granted discretionary review to consider whether a federal conviction for false statements to a federal agent, 18 U.S.C. § 1001 (" Section 1001"), is "substantially the same" as the Pennsylvania crime of false reports to law enforcement authorities, 18 Pa.C.S. § 4906 (" Section 4906"), for purposes of Act 140. For the reasons that follow, we conclude that the two offenses are not "substantially the same," and, thus, the Commonwealth Court erred in affirming the forfeiture of the pension of Appellant, former Municipal Court of Philadelphia County Judge Joseph O'Neill.2
Appellant became a member of the State Employees Retirement System ("SERS")3 on November 14, 2007, by virtue of his commission as a judge on the Municipal Court of Philadelphia County. On March 11, 2016, Appellant was charged in the United States District Court for the Eastern District of Pennsylvania with two counts of making false statements to federal agents in violation of Section 1001, and was ultimately indicted for this offense. The indictment alleged that, on November 16, 2011, another judge on the municipal court, Judge Joseph Walters, Jr., telephoned Appellant and requested favorable treatment for a defendant, Samuel Kuttab, in a case scheduled to be heard by Appellant that afternoon. Specifically, it was alleged that Judge Walters asked Appellant to take a "hard look" at the case, and stated that Kuttab was "my guy." Stipulations of Fact of State Employees’ Retirement Board, at 1. That same day, Appellant heard evidence presented in the case, and ruled in favor of Kuttab. Id .
Unbeknownst to Appellant or Judge Walters, the FBI was investigating the relationship between Judge Walters and Kuttab, a politically-active businessperson, and had placed a wiretap on their telephones. As part of the investigation, the FBI looked into the circumstances surrounding the conversation between Judge Walters and Appellant. FBI agents interviewed Appellant on September 19 and 20, 2012. During the first interview, the agents asked Appellant whether anyone contacted him in advance of the November 16, 2011 hearing to ask him to rule in any particular party's favor. Id . Appellant denied any such contact and emphasized that he would have remembered if someone contacted him about the case. Id . In a second interview, when asked by FBI agents if, before the hearing, anyone told Appellant that the defendant at that hearing was his "friend," Appellant responded that it "did not happen." Id . Thereafter, on May 26, 2016, Appellant pled guilty to two counts of violating Section 1001 and resigned from his commission as a judge on the municipal court.
A week after his resignation from the municipal court, on June 3, 2016, Appellant submitted an application for annuity with SERS in which he sought an immediate lump sum payment of his pension. By letter dated June 16, 2016, SERS informed Appellant that, pursuant to Act 140, he had forfeited his pension benefit as of the date of his guilty plea to Section 1001, and that he was entitled only to the monies he contributed while a member of SERS, less any debts, fines, or restitution ordered at the time of sentencing. In its letter, SERS explained that, pursuant to Section 3(a) of Act 140:
[N]o public official or public employee nor any beneficiary designated by such public official or public employee shall be entitled to receive any retirement or other benefit or payment of any kind except a return of the contribution paid into any pension fund without interest, if such a public official or public employee is convicted or pleads guilty or no defense to any crime related to public office or public employment. 43 P.S. § 1313(a).
SERS Letter, 6/16/16 at 1. SERS further explained that Section 2 of Act 140 defined the phrase "[c]rimes related to public office or public employment" to include, inter alia , Section 4906 of the Crimes Code, which criminalizes giving false reports to law enforcement, and any federal crime "substantially the same" as Section 4906. 43 P.S. § 1312.4 Upon review of Appellant's record, SERS found that Appellant was a public official when he pled guilty to two counts of violating Section 1001, and that Section 1001 is "substantially the same" as Section 4906. As such, SERS concluded that Appellant forfeited his pension benefit when he pled guilty to two counts of violating Section 1001. Appellant appealed this determination to the Board.
Initially, the Board appointed a hearing officer for the development of a factual record; however, as Appellant and SERS found a hearing to be unnecessary, they submitted stipulations of fact, joint exhibits, and written briefs setting forth their respective arguments. Thereafter, the hearing officer issued a decision in which she determined that Appellant had been convicted of a crime related to public office or public employment, and that Section 1001 was substantially the same as Section 4906. In reaching this conclusion, the hearing officer found dispositive the Commonwealth Court's decision in Merlino v. Philadelphia Board of Pensions and Retirement , 916 A.2d 1231 (Pa. Cmwlth. 2007) ( Section 1001 to be substantially the same as Section 4906 for purposes of Act 140). Accordingly, the hearing officer concluded that Appellant forfeited his pension benefit when he pled guilty to two counts of violating Section 1001 and recommended that the Board affirm SERS's forfeiture determination. Appellant filed exceptions to the hearing officer's recommendation with the Board.
Before the Board, Appellant argued, contrary to the Commonwealth Court's holding in Merlino , that Section 1001 is not substantially the same as Section 4906 because Section 4906 contains elements of proof that Section 1001 does not contain. Additionally, Appellant contended that Merlino was factually distinguishable and should not control his case. According to Appellant, when determining whether two crimes are substantially the same for purposes of Act 140, the facts of an underlying conviction should be considered in addition to a comparison of the elements, including the mens rea, of the crimes. Appellant claimed that his conduct, while a violation of Section 1001, did not violate Section 4906. As such, Appellant maintained that Merlino was factually distinguishable because the conduct of the individual in Merlino violated both Section 1001 and Section 4906.
The Board denied Appellant's exceptions and confirmed the forfeiture of his pension benefit, agreeing with the hearing officer that Section 1001 and Section 4906 are substantially the same for purposes of Act 140. In re: Account of Joseph J. O'Neill , Docket No. 2016-06 (SERB filed September 3, 2019). In rejecting Appellant's exceptions, the Board first found that Appellant was essentially arguing that "the elements of a federal crime must be identical" to one of the forfeiture-triggering state crimes listed in Act 140. Id . at 3. To the contrary, citing precedent from the Commonwealth Court, the Board concluded that two crimes need not contain identical elements of proof to be substantially the same for purposes of Act 140, but rather two crimes are substantially the same if they "prohibit the same type of behavior." Id . (emphasis original). The Board determined that Section 1001 and Section 4906 prohibit the same type of behavior — reporting false information to law enforcement — and, therefore, the two crimes at issue were substantially the same.
In so concluding, the Board rejected Appellant's assertion that the federal crime was not substantially the same as Section 4906 because the federal crime entailed denying to the FBI that he was contacted regarding the case before him, as opposed to reporting an event that did not actually occur as required by Section 4906. Id . Specifically, the Board reasoned that "the nature of [Appellant's] misrepresentation to law enforcement does not affect the analysis required to determine whether Act 140 applies" and, thus, "[t]he fact that [Appellant's] lie to the FBI involved his denial of impropriety as opposed to falsely stating that something happened is a distinction without a difference for purposes of determining whether the federal crime is substantially similar to an enumerated Act 140 crime." Id . at 3-4. The Board also rejected Appellant's exception in which he maintained that the hearing officer improperly failed to consider the facts underlying the offenses. The Board reasoned that Act 140 does not require that the facts of a particular case be analyzed when determining whether two crimes are substantially the same. As such, the Board disagreed with Appellant's attempts to factually distinguish Merlino . While recognizing that our Court had not reviewed whether Section 1001 and Section 4906 are substantially the same for purposes of Act 140, the Board concluded that Merlino was controlling.5 Accordingly, the Board denied Appellant's request to reverse the determination of SERS. Appellant appealed to the Commonwealth Court.
A three-judge panel of the Commonwealth Court unanimously...
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