HARRISBURG — Years after he went to federal prison for corruption, the longtime Democratic leader of the state Senate will get his $245,000 annual pension back, a state board has narrowly decided.
It's the only time in at least 11 years that the board of the State Employees' Retirement System has returned someone's pension to them after it was taken away for a criminal conviction. Former State Sen. Robert Mellow had appealed that initial decision.
It was a close matter, the board voting 6-5, with some members arguing that it would set a bad precedent to give the perk back to the former Scranton-area lawmaker.
"The board struggled with this decision as evidenced by the split nature of the vote, including the filing of dissenting opinions, which does not happen often," board spokeswoman Pamela Hile said in an email.
At the center of the case was a question about whether Mellow's federal conviction — for conspiracy to commit mail fraud and to defraud the U.S. — closely enough resembled any of a number of state crimes that require state employees to automatically forfeit their pensions.
Board members either declined comment or did not respond to calls – all 11 were contacted. Written opinions filed in the case offer some hints as to why they voted the way they did.
Mellow, who served as a senator for 40 years and was for many years the highest-ranking Democrat there, pleaded guilty in 2012 after prosecutors charged him with using taxpayer-funded staff to raise money and work on political campaigns. Staff at the State Employees' Retirement System determined that Mellow's conviction required him to lose his pension, and he appealed twice, resulting in the latest ruling.
State law requires employees to forfeit their pensions if they are convicted of or plead guilty to certain state crimes or federal crimes that are "substantially the same as" state crimes on the list. Mellow contended nothing was comparable to his crime.
The majority opinion, attached to an order signed by chairman David Fillman, compares Mellow's conviction to the state crime of theft by deception. The majority wrote that a theft by deception conviction would have required Mellow to "actually obtain money and property of the Senate" – and that was not an element of the federal conspiracy charge to which he pleaded.
The five dissenting members, in an opinion written by state treasurer Joe Torsella, said that the majority's opinion was "an abrupt departure" from one of the board's previous decisions. They cited a case in which a district judge who had been charged with federal mail fraud lost his pension.
The majority's conclusion allows Mellow "to avoid the financial consequences of criminal conduct to which he pled guilty, creates a record of inconsistent determinations by the Board and undermines the deterrent effect of the Forfeiture Law," according to the dissenting opinion.
A board order dated Nov. 6, after all members had cast their ballots, calls for Mellow to receive his $20,510 monthly pension (more than $245,000 a year), plus payments and interest for the time it was forfeited. A portion of that will go to his ex-wife, Diane Mellow, as part of the couple's divorce settlement. Diane Mellow had also appealed the decision to strip Robert Mellow of his pension.
Sal Cognetti, the attorney representing Robert Mellow, said he believes the board's ruling is consistent with what he learned in continuing legal education classes.
"I am pleased that the law was followed, and I'm sure he is too," Cognetti said.
Diane Mellow's attorney, Terry McDonald, said she was similarly pleased with the board's decision. The ruling, he said, allowed her to keep her home.
Voting to restore Mellow's pension were Fillman, Glenn E. Becker, Rep. Robert Godshall (R., Montgomery), Sen. Vincent Hughes (D, Philadelphia), Sen. Charles McIlhinney (R., Bucks) and Michael Puppio. Voting against that were Torsella, Rep. Dan Frankel (D., Allegheny), T. Terrance Reese, Mary Soderberg and Stephen Aichele, who wrote a second dissenting opinion saying he would have liked to have seen the courts provide "further clarity on these important issues."