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Allan C. Berkhimer v. State Employees' Retirement

January 14, 2013

ALLAN C. BERKHIMER, PETITIONER
v.
STATE EMPLOYEES' RETIREMENT BOARD, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: October 15, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

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.

I. Background

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, Berkhimer purchased 3.5 years of service credit for his active-duty, non-intervening military service from September 5, 1972, through March 4, 1976.*fn1

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.*fn2

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 SERS Appeals 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 Constitution*fn3 and section 3352(a) of the Judicial Code, 42 Pa. C.S. §3352(a),*fn4 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 Pennsylvania Constitution and relevant statutes were amended to include the forfeiture of retirement benefits.*fn5

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.*fn6

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 a member'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 ...


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