BRUCE CASTOR'S WORK AS TEMPORARY SPECIAL ASSISTANT DISTRICT ATTORNEY IN CENTRE COUNTY (2015-2017)

HOW DID $215,991.57 CASTOR INVOICES BECOME $23,891.98 + $1,122.91 (PAID OUT 12-29-17)?

WHAT WAS THE BASIS FOR THE DA OFFICE'S 12-29-17 PAYMENTS OF PUBLIC MONEY TO CASTOR'S LAW FIRM?

Background: 2015- 2017 Special Assistant DA Contract

On April 9, 2015 then-DA Stacy Parks Miller signed this contract with Bruce Castor acting on behalf of the law firm of Rogers Castor for that firm to provide the services of Attorney Bruce Castor to work as a temporary special assistant DA to the Office of District Attorney. The contract stated the "Firm is to be paid for Mr. Castor's services in such amounts periodically as the District Attorney shall determine" and further that the "Firm shall be reimbursed for reasonable costs for travel, meals and accommodations expended in the performance of Mr. Castor's duties on behalf of the Commonwealth upon presentation to the District Attorney of receipts for same." Mr. Castor resigned (pages 3 & 4) from this temporary Special Assistant DA role on 12/31/17. Missing from this contract was any language that explicitly spelled out the hourly pay that was to be paid to Mr. Castor. See Rule 1.5(b) of the Rules of  Professional Conduct:

"When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation."

12-29-17 Pay-Outs ($23,891.98 + $1,1,22.91) & Attempted Secrecy

It appears that none of Mr. Castor's work as Special Assistant DA was paid out until December 29, 2017 (then-DA Stacy Parks Miller's last day in office). It appears as if a cluster summary of invoices (or partial invoices) - going back two years - were submitted for payment and that a forfeiture funds bank account was used to make pay-outs of $23,891.98 (summary explanation by ADA Smith) + $1,122.91 (summary explanation by ADA Smith). On the same day as these last minute pay-outs Ms. Parks Miller tried to keep everything about the forfeiture funds account secret with this RTKL denial (the newly elected incoming DA later released forfeiture funds records).

Right to Know Law Dispute

- Item 4 sought unredacted copies of these 12-29-17 cluster summary invoices.

- Response to Item 6, extracting out the 22 pages released in the DA's 5-4-18 (which should have been identified as responsive to Item 5), reveals 22 pages of invoices totaling $215,991.57 (not the requested "receipts" which what Item 6 actually sought). The released invoices further reveal a Castor invoicing rate of $650/hour. Breaking the 22 pages down into dated invoice sequence reveals:
 
Invoice 1191 Date: 10-7-15 Due: 11-6-15 $71,600.60 (page 6 is missing so Total Amount Outstanding is unknown)
Invoice 1201 Date: 11-10-15 Due: 11-30-15 $260.00 (Total Amount Outstanding $93,956.09)
Invoice 1269 Date: 12-7-15 Due: 12-31-15 $4,095.00 (Total Amount Outstanding $93,956.09)
Invoice 1333 Date: 1-13-16 Due: 1-31-16 $1,625.00 (Total Amount Outstanding ($93,956.09)
Invoice 1520 Date: 5-3-16 Due: 5-31-16 $325.00 (Total Amount Outstanding $93,956.09)
Invoice 1911 Date: 2-10-17 Due: 3-12-17 $73,310.97 (Total Amount Outstanding $956.09)
Invoice 2027 Date: 6-4-17 Due: 7-4-17 $33,410.00 (Total Amount Outstanding $215,991.57)
Invoice 2067 Date 6-7-17 Due: 7-7-17 $31,265.00 (Total Amount Outstanding $215,991.57)

These invoices (22 pages) make for a rhetorical "huh?" There appears to be missing missing information, missing invoices, and overlap. The date Castor signed a contract to be Temporary Special Assistant DA was April 9, 2015 and he stayed in that role under December 31, 2017. How did invoices in the Centre County DA's Office get generated showing a rate of $650/hour? Were is it written that $650/hour was to be the contracted rate? Why does the Total Amount Outstanding not change between some invoices? Why were these invoices not submitted and paid in accordance with the stated due dates?
 
QUESTIONS ABOUT ADA MARK SMITH'S APPROVAL OF PUBLIC MONEY EXPENDITURES ON 12-27-17
 
In his 12-29-17 payment letter ADA Smith refers to Check #0927 (in the amount of $23,891.24) as payment for "Invoices #2336 and 2337". Does this other document dated 12-27-17 look like an "invoice"? In his other 12-29-17 payment letter ADA Mark Smith refers to Check #0173 (in the amount of $1,122.91) as payment for "Invoices #2334 and 2335". Does that other document dated 12-27-17 look like an "invoice"? Why didn't Smith think it better to await the arrival of the new District Attorney instead of rushing to pay what these "invoices" within 48 hours of their creation?
 
- Response to Item 8 reveals Castor was actually paid at $100/hour as Special Assistant DA for certain, select, parts of some invoices. Where is it contratually written that his rate was not to be $650/hour but instead should be $100/hour? By contrast, records released show that fellow "Special Assistant DA: Robert Stewart was paid $50/hour from the drug forfeiture fund account:
 
2017 Special Assistant DA Stewart: $2537.50, $825.00, $837.50, $2837.50
2016 Special Assistant DA Stewart: $1187.50, $1512.50 and $2110.00, $2012.50, $2300.00, $3087.50, $3962.50
2015 Special Assistant DA Stewart: $1475.00, $3775.00, $3800.00, $5162.50 and $1262.50
 
Where is Stewart's salary board approval under 16 P.S. § 1420(a)? Was Stewart another multi-year "temporary" hire under 16 P.S. § 1420(b)? If so, where is his contracted showing the agreed billing rate? And, again, what statute permitted Stewart to be paid with forfeiture funds?

- Response to Item 9 releases then-DA Stacy Parks Miller e-mailing Assistant DA Mark Smith on 12-29-17 to have Castor paid with forfeiture money:

 
ADA Smith at 12:32pm:

"Stacy: Yesterday you mentioned paying Bruce for work he performed in alcohol and drug-related cases. Do didn't mention it this morning. In order to pay for his legal services, I need an invoice on his letterhead. If it helps, Bob Stewart's invoices contained the dates worked, the number of hours on each date, the rate per hour, and the total amount requested. As far as alcohol-related cases are concerned, 42 §6801(f) provides that the DA can use forfeited funds for enforcing the provisions of The Controlled Substance, Drug, Device and Cosmetic Act. Since alcohol is not a substance that is mentioned in the Controlled Substance, Drug, Device and Coastmetic Act, I don't think that legal services in alcohol-related cases is eliginle for reimbursement. Do you think he can get an invoice sent to us today? Mark."***
 

DA Parks Miller at 12:36pm:

"How much is in the other account?"

 
ADA Smith at 12:40pm:

$468,771, But I don't have any check for that account."

 
DA Parks Miller at 12:40pm:

"Im talking regular forfeiture account"

 
ADA Smith at 12:44pm:

"$135, 183"

 
DA Parks Miller at 12:45pm:

"How did it get so big? I thought it was down to like 14k awhile ago. Then we will pay him from that if you don't think we can from drug"

 
DA Parks Miller at 12:47pm:

"I have the invoices and the total"

 
DA Parks Miller at 1:10pm:

"Im talking about non drug f account"

 
***Note: Smith referred to a statute "42 §6801(f)" that was repealed on June 29, 2017 by Act 13 of 2017). However the statutory language pertaining to "use of cash or proceeds of property" remained unchanged between 42 Pa.C.S. § 6801(f) and 42 Pa.C.S. § 5803(g).

OOR Final Determination is due June 25, 2018.

QUESTIONS

  1. Why did Castor generate invoices for his work as Special Assistant DA after Kathleen Kane told him on 3-29-16 (upon being hired as Solicitor General to the AG's Office that he "shall accept no additional compensation for work performed as a temporary assistant district attorney in Centre County after March 21, 2016" (source)? Castor was with the AG's office until 9-9-16. Yet we see in the "Shull" matter (unredacted) charges of time for 6-29-16, 6-28-16, 6-27-16, 5-10-16 (source).
  2. Why was Castor paid out at $100/hour as Special Assistant DA when special assistant DA Robert Stewart was getting $50hour? Where is the Rule 1.5(b) written basis for Castor's hourly fee and/or any change in that fee? Why were invoices generated showing $650/hour if he was to be paid at $100/hour?
  3. How is the $191,000 difference between the $215,991.57 invoices and the 12-29-17 pay-outs ($23,891.98 + $1,122.91) explained? Did Castor generate invoices that were later decided to be inappropriate for payment? If so, why and by whom?
  4. Why did Castor wait over two years before submitting a cluster of charges for payment? Why were invoices not paid on a rolling basis?
  5. Re: the $23,891.98 cluster invoices: what is redacted, by whom, and why?  (see Item 4 of Right to Know dispute).
  6. Where are the requested receipts for Castor's hotel stays, food, etc. (see Item 6 of the Right to Know dispute).
  7. Who "destroyed" what records? (see DA submission to OOR on 6-5-18 in Right to Know dispute).

FORFEITURE FUNDS LAW DOES NOT AUTHORIZE FORFEITURE FUNDS TO BE USED FOR BUDGET PURPOSES

The e-mail exchange between the two then public officials shows that the legal decision as to which forfeiture funds account to pay Castor out of, was made in a hurried manner. Despite working as Assistant DA for the better part of nearly three years it seems that no invoices were submitted for payment until the last second. ADA Smith quoted a statute that was repealed when he e-mailed DA Miller at 12:32pm. Which one of these forfeiture funds statutes (omnibus combined into Act 13 of 2017) did the two then public officials think applied to the 12-29-17 payments to Rogers Castor?:

  • 4 Pa.C.S. § 1518 (relating to prohibited acts; penalties).
  • 18 Pa.C.S. § 910 (relating to manufacture, distribution, use or possession of devices for theft of telecommunications services).
  • 18 Pa.C.S. § 2717 (relating to terrorism).
  • 18 Pa.C.S. § 3141 (relating to general rule).
  • 18 Pa.C.S. § 4116 (relating to copying; recording devices).
  • 18 Pa.C.S. § 4119 (relating to trademark counterfeiting).
  • 18 Pa.C.S. § 5513 (relating to gambling devices, gambling, etc.).
  • 18 Pa.C.S. § 5707 (relating to seizure and forfeiture of electronic, mechanical or other devices).
  • 18 Pa.C.S. § 6501 (relating to scattering rubbish).
  • 18 Pa.C.S. § 7707 (relating to loss of property rights to Commonwealth).
  • 30 Pa.C.S. § 927 (relating to forfeiture of fish and devices).
  • 42 Pa. C.S. § 5803 (relating to controlled substances forfeiture).
  • 75 Pa.C.S. § 4909 (relating to transporting foodstuffs in vehicles used to transport waste).
  • 75 Pa.C.S. § 9405 (relating to forfeitures; process and procedures).

Use of forfeiture funds, 42 Pa.C.S. § 5803(g):

Use of cash or proceeds of property.--Cash or proceeds of property, subject to forfeiture under section 5802 and transferred to the custody of the district attorney under subsection (f) shall be placed in the operating fund of the county in which the district attorney is elected. The appropriate county authority shall immediately release from the operating fund, without restriction, a like amount for the use of the district attorney for the enforcement of or prevention of a violation of the provisions of The Controlled Substance, Drug, Device and Cosmetic Act. The funds shall be maintained in an account or accounts separate from other revenues of the office. The entity having budgetary control shall not anticipate future forfeitures or proceeds from future forfeitures in adoption and approval of the budget for the district attorney.

This law, on its face, does not allow seized monies/property to be eligible for budgetary planning by a DA.

    CASE LAW RE: SECTION 1420(b) OF THE COUNTY CODE) REQUIRES EXPENDITURES NOT IN THE DA'S BUDGET (E.G. TEMPORARY SPECIAL ASSISTANT DAs) TO BE APPROPRIATED BY COUNTY COMMISSIONERS

      The County Code, 16 P.S. § 1420, as pertains to DA staff being hired as Special Assistants states:

        Section 1420.  Assistant, Special Assistant and Deputy Assistant District Attorneys; Number; Compensation.--

        (a)  The district attorney may appoint such number of assistants, special assistants or deputy assistants, learned in the law, to assist him in the discharge of his duties, as is fixed by the salary board of the county. The salary board shall fix the salary of such assistants, special assistants and deputy assistants.

        (b)  The district attorney may appoint temporary assistants, temporary special assistants or temporary deputy assistants, learned in the law, to assist him in the discharge of his duties, as provided by contract or other personnel agreement with the county or the district attorney. Any attorney-at-law, including a deputy Attorney General or an attorney employed by the Commonwealth, may be appointed under this subsection.

        It is known that DA Parks Miller did not seek salary board approval for the retention of Special Assistant Castor under § 1420(a). The same appears to be true for Special Assistant DA Robert Stewart. That means they were were retained on a "temporary" basis per § 1420(b). Castor, in particular, appears to be have been retained with a far-ranging ongoing remit not a limited remit for a limited time time period. Case precedent on § 1420(b) is Yost v. McKnight, 865 A.2d 979 (2005). In Yost, the Commonwealth Court ruled that temporary contracts were permissible under § 1420(b) with the following caveat:

        However, this authorization is limited by the County Code.

        Under Section 1701 of the County Code, the Commissioners are designated as the responsible managers and administrators of the fiscal affairs of the county. 16 P.S. § 1701; Lewis v. Monroe County, 737 A.2d 843 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 562 Pa. 677, 753 A.2d 822 (2000); Adamo v. Cini, 656 A.2d 576 (Pa. Cmwlth. 1995). One of the Commissioners’ management obligations is to prepare and provide notice of a proposed budget and adopt a final budget by December 31st of each year. See Sections 1780-1785 of the County Code, 16 P.S. §§ 1780-1785; Lewis, 737 A.2d at 844-45. The Commissioners also have fiscal responsibility to borrow and transfer money, make supplemental appropriations, levy taxes, and manage a capital reserve fund for anticipated capital expenditures.

        Given the scope and breadth of their fiscal responsibilities, it would be illogical to compel the Commissioners to provide non-budgeted funds to cover the expense of legal service contracts entered into by the District Attorney without their approval. See Lewis; Cadue v. Moore, 646 A.2d 683 (Pa. Cmwlth. 1994).20 “Forcing” the payment of such contracts could potentially overdraw the amount the Commissioners have budgeted for the department, or cause the Commissioners to appropriate funds from other line items or other departments and levy taxes in an amount sufficient to meet the District Attorney’s expenses. Id. In essence, entering an order compelling the commissioners to approve payment of such an expenditure would allow the District Attorney to “invade the province of the legislative body by applying any excess money from other departmental line items to [his legal service contracts] when those excess monies might be needed for some other purpose in the county.” Cadue, 646 A.2d at 686. The County Code is clear that the District Attorney lacks the authority to do so.

        Rather, the District Attorney is an elected officer of the county, Section 401(a)(11) of the County Code, 16 P.S. § 401(a)(11), and may enter into such contracts as at issue here, for those services for which he has funds in his budget. Otherwise, he must request that the Commissioners appropriate such funds for his use. See, e.g., 16 P.S. § 1784. (emphasis in original).

        PA Commonwealth Court; Yost v. McKnight, 865 A.2d 979 (2005).

        Per the above Commonwealth Court precedent, a District Attorney "may enter into such (temporary Special Assistant DA) contracts ...for which he has funds in his budget. Otherwise he must request that the Commissioners appropriate such funds for his use."  The Court did not say "otherwise the DA can use forfeiture funds accounts."