Conestoga View Part II – V: Grand Jury Witch Hunt

(Forty-second in a series)

by Christiaan Hart-Nibbrig

“Wherever this takes us…”

— Lancaster County District Attorney, Donald A. Totaro, in response to a question about the scope of a grand jury investigation he launched, November 10, 2005. The secret inquiry is centered on the hiring of a county administrator charged with falsifying a resume. It is only the third grand jury empanelled in Lancaster County history. The other two were high-profile, sensitive homicide cases.

The legal sale of a county building would seem an unlikely issue to dominate news coverage during a city mayoral election campaign. But the sale of the Conestoga View nursing home was unquestionably the ‘big story’ in the summer and fall of 2005, at least according to the editors at Lancaster Newspapers. Nothing else came close.

Between the time the Lancaster County commissioners voted unanimously to enter into a sales agreement to sell Conestoga View on July 6, 2005, to the final vote to close the sale on September 28, 2005, and well past the election in November, the media coverage, particularly newspaper, of the transaction can only be described as ‘saturated,’ or blanket coverage. And the coverage was overwhelmingly negative as it concerned the county commissioners.

The harshest, most outspoken critic was former Lancaster mayor, Art Morris, who attended every commissioner’s meeting throughout the summer and fall vigorously opposing the sale. Morris, clad in a business suit, tall and well-spoken, peering over his glasses, would stand and speak directly to the commissioners during the public comment portion of the meetings, excoriating them on various aspects of the transaction.

There is absolutely no justification for the speed with which you are moving forward on this sale,” Morris told the commissioners at an August 24 commissioners’ meeting, six weeks after they announced the pending, not yet complete, sale.

Morris’ comments and opinions found their way increasingly into front page reports in the Lancaster newspapers. His scathing criticisms were reflected, as well, in the editorial and letters-to-the-editor sections.

Sunday News editor Dave Hennigan’s hokey, but popular, “Coffee with Clyde” column also prominently incorporated, sometimes mirrored, Morris’ criticisms of the commissioners. Morris used his own Sunday News column to slam the sale.

County controller (and future county commissioner) Dennis Stuckey made public his office’s analysis of the sale, concluding that Conestoga View was not losing money, as the current board claimed, but rather was operating at a cash flow profit. Stuckey said a five-year review of the facility’s finances revealed the nursing home lost only $362,378 since 1999 when depreciation of the home is factored into the budget. Without depreciation, Stuckey said, Conestoga View was profitable.

“We think there was some faulty logic coming up with the [commissioners’] numbers,” Stuckey told the New Era. “It’s operationally sound at this point.”

Don Elliot, then county administrator, who was central to the sale negotiations, responded by saying Stuckey’s accounting did not reflect that Conestoga View has been tapping a savings account, an “enterprise fund,” in order to balance its budget the past several years.  Without enterprise funding, Elliot said, the facility operated at a loss.

As the September 28 final vote on the sale approached, Morris was joined at commissioners’ meetings by former county commissioner, Paul Thibault (“There are holes in this agreement you could drive a truck through,” said Thibault); and then-Mayor and candidate for mayor, Charlie Smithgall, who raised the emotional issue of indigent care (“This is the last and only place that will take ventilator patients, quads, paraplegics, etc.,” the mayor said delicately).

Also in the audience at each county commissioners’ meeting were Smithgall’s 70-something year-old mother-in-law, Jane Albright; Chamber of Commerce President, Tom Baldridge (“We cannot support the sale as presently structured,” said Baldridge.); and Lancaster Township Supervisor, Tony Allen, (who encouraged Shellenberger to release himself “from the evil clutches of Molly Henderson”) added his voice to the gallery of detractors.

These people had something else in common apart from opposition to the Conestoga View sale – all, including Morris, were strong, day-one, on-the-record supporters of the convention center project.

The unusually extensive newspaper coverage – dozens of articles; tens of thousands of words, above-the-fold banner headlines, editorials, letters, photographs – dedicated to criticizing the commissioners over the Conestoga View sale had a strong, though strange, impact on the convention center debate.

By running so many items on Conestoga View, the public’s attention was largely diverted from the convention center project. This was after the TIF defeat for the sponsors, which galvanized the public opposition against the project. Instead of commissioners Shellenberger and Henderson talking about the then-$137 million project, they were forced to constantly defend an increasingly unpopular, and newspaper-hyped, $8.5 million sale of a county asset.

The Steinman family owned, operated, and controlled a print monopoly in Lancaster County for most of the 20th century. The Steinmans published all three major publications – the morning Intelligencer Journal, the afternoon Lancaster New Era, and the Sunday News, as well as the leading farm journal and the Spanish language weekly. (The Intelligencer Journal and New Era merged in 2008.)

Then, most Lancastrians still relied on one of the two daily broadsheet newspapers for local news coverage. The Sunday News (also a broadsheet) combined the readerships of both dailies and had a circulation around 90,000 in 2005. Both dailies had circulations of roughly half that amount at the time. Lancaster County then had a population of 490,000. That meant that one of the Lancaster Newspapers was delivered to the majority of households every single day of the week in Lancaster County. And there was no print competition for any of the three.

The question of why Lancaster Newspapers’ top editorial leadership decided to devote so much coverage to the legal $8.5 million sale of a county facility, as opposed to thoroughly examining the feasibility of building a controversial and publicly funded $150+ million convention center project (in which Lancaster Newspapers was a major private investor), was a question the editors were not going to ask themselves, at least not publicly.

Six days before the final vote to close the Conestoga View sale, on September 22, 2005, Senator Gib Armstrong and Lancaster Mayor Charlie Smithgall publicly called for Commissioner Shellenberger’s resignation.

The guy is out of control,” Armstrong was quoted on the front page of the Lancaster New Era. Armstrong cited Shellenberger’s alleged pressuring of John Fry to resign from the LCCCA board and the handling of Conestoga View as the reason for asking for Shellenberger’s resignation.

(Shellenberger told NewsLanc“We did not ask Fry to resign.  He resigned from the board, and we appointed someone [Douglas] who would ask the questions the taxpayers wanted answered.”)

Mayor Smithgall, in the same New Era article, said:  “He should resign. It is time. … The county commissioners – Shellenberger and Molly Henderson – seem bent on killing any forward movement in the city, especially in downtown.”

Two days later, Commissioner Pete Shaub, the original and driving force behind the Conestoga View deal, reversed his position and announced he would not vote to finalize the sale. “The numbers just don’t add up,” Shaub said, citing controller Stuckey’s report. (According to the Grand Jury Report“During the recess [at the Conestoga View vote], Commissioner Shaub called Ms. Judge into his office and told her that he was going to vote against the sale but that she had better make sure that the other two voted for it.”)

On September 28, 2005, at a packed Commissioners’ meeting, Shellenberger and Henderson voted to finalize the sale. Shaub, though expressing privately that he wanted the sale to go through, dissented.

If the board of county commissioners, specifically Shellenberger and Henderson, thought the media firestorm would end after the sale of Conestoga View they were mistaken.

The scale and vitriol of the response in Lancaster Newspapers after the vote could not to be anticipated. Letters condemning the sale continued. “Clyde” kept grousing about it each week. In the month after the sale, there were 37 separate articles and letters on Conestoga View. All were negative except for one – Commissioner Henderson’s explanation (“Why we sold Conestoga View”)..

The first Sunday News editorial after the vote, (A shameful deal on October 2, 2005,) captured the tone of the Lancaster Newspapers’ response:

Barring a miracle, by the time you read this, Conestoga View will be the property of Complete HealthCare Resources. The sale was to take effect at 12:01 a.m. Saturday.

We’d hope the Lancaster County commissioners would be ashamed, but they’ve proven themselves a shameless lot.

They did a sloppy deal in secret to sell the county nursing home, sprang it on the public, then whined that the county would lose millions if the commissioners backed out. …

…With a gang that not only can’t shoot straight but can’t even shoot themselves in the foot properly, why should we trust that they’ve done the right thing by the people of Lancaster County?”

That was far from the last word on the subject.

Former mayor, Art Morris, was not letting go of the issue. His approach after the vote seems to have been to try to find an issue, any issue, that would reverse the sale, or cast the commissioners in a disreputable light for making it.

Morris criticized the commissioners on the hiring of lawyers; specifics of the deal; and the speed the sale. He followed Conestoga View vans after the sale was complete, reporting they hadn’t changed license plates. He wanted to know why county-issued gas cards were still being used.

And in the days and weeks following the September 28 vote, all three Lancaster newspapers continued to publish articles, some two-and three-thousand words, harshly critical of “the commissioners.” Most ran with photographs of all three commissioners, or of ‘citizen’ Morris commenting on commissioner malfeasance.

But the fact is that the sale of Conestoga View was perfectly legal. State law did not require, by specific exemption, the county put the property out for bid. Multiple appraisals were required by the County Code before it was sold. The county got multiple appraisals.

(In fact, the new ownership continues to receive high ratings from the state and there have been little if any newspaper reports critical of its operations.)

In late October 2005, four weeks after the final sale of Conestoga View, Art Morris finally got his wish. His ‘throw-everything-against-the-wall-and something-will-stick’ approach yielded a direct hit: Gary Heinke.

Heinke, Shellenberger’s friend hired as Chief Services Officer for the county in 2004, was first mentioned as a target of investigation on October 24.  In a New Era article, “Who is Gary Heinke?” questions were raised by Art Morris about Heinke’s background and credentials listed on his resume.

On that same day, the commissioners announced they were ordering an investigation into Heinke’s hiring. The head of the county’s human resources department, Thomas Myers, led the investigation.

The next day, October 25, Heinke told the commissioners the information on his resume was accurate.

On that same day, an article published by the New Era (“A question of credentials”) uncovered several glaring misrepresentations on Heinke’s resume. It also was revealed that Gary Heinke not only received advice from Shellenberger, Shaub, and solicitor John Espenshade prior to his hiring, but he also substantially lied about his work experience and educational credentials.

On October 28, Gary Heinke resigned as Chief Services Officer.

On November 10, the day the Myers Report was to be released, Lancaster County District Attorney Donald Totaro announced his grand jury investigation, and blanketed the fifth floor with more than 80 subpoenas, including all three Lancaster County Commissioners.

Totaro launched the investigation before reading the Myers report. The Myers report concluded that Heinke falsified his resume, but not his county application for employment.

It didn’t seem to matter what the Myers report said;  Totaro was going to use Heinke’s hiring to investigate the Lancaster County Commissioners.

I hope [the District Attorney] expands the investigation to include all aspects of the Conestoga View sale,” said a pleased Art Morris after Totaro’s announcement.

Again, Art Morris would have his wish granted.

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Part III:  Lancaster’s Real Scandal of the Century Lancaster’s Real Scandal of the Century (Appeared 6/12/07)

NewsLanc questions whether 50 persons ever read the Grand Jury Report. Instead, the public’s information came from days of repeated newspaper headlines in the monopoly Lancaster press (Lancaster Newspapers, Inc.) vilifying the commissioners for pleading guilty to a minor violation which the actual report suggests they never committed.
(The Lancaster Newspapers, Inc. is a 50% partner in the Convention Center Hotel project about which the County Commissioners have strenuously raised many valid objections.)
District Attorney Donald Totaro says the Grand Jury investigation of the County Commissioners was to inquire into violations of the state’s criminal laws regarding a job application. The Grand Jury soon established that there were no violations.

Thwarted, Totaro then obtained permission to investigate the sale of Conestoga View Nursing Home, in part to determine whether one or more of the commissioners had personally benefited. The jury again cleared the commissioners of any wrongdoings.

The county commissioners told the Grand Jury that they delayed publicly discussing the possible sale of the Conestoga View Nursing Home to minimize anxiety on the part of nursing home staff and patients. The commissioners explained they sold to the operator because of its satisfactory performance over a decade, willingness to provide guarantees of future patient care levels, and payment of a price established by appraisals.

The District Attorney had sought the Grand Jury investigations to investigate alleged major felonies. Now after a year, he faced the humiliation of having his Grand Jury exonerate the commissioners of all accusations. The DA’s reputation was about to be besmirched and his likelihood of becoming a judge compromised.

Totaro drew up the testimony and called the commissioners back repeatedly over the year, challenging their memories about details of long ago discussions. The commissioners believed they were faced with an indictment for perjury due to some unwitting contradiction that might force them from office and certainly would make it impossible to run for reelection.

There was no way for them to know that the grand jury was ready to exonerate them on all accounts. So they reluctantly accepted a plea bargain to a minor violation which they believed they had not committed.

In fact, the Grand Jury faulted the obscurity of the Sunshine Law, not the commissioners. The commissioners were acting on the advice of the county solicitor and the solicitor was probably correct in his interpretation of the vague law. And to have violated the law, the commissioners would have had to do so intentionally, which was an absurdity since counsel was present.

The monopoly newspapers played up the minor violations which carry a $100 fine as though the commissioners committed the crime of the century.

For three days the newspaper ran banner headlines across their front pages.

This is how a petty violation was used to drive one out of office, prevent another from running for reelection, and to put in doubt the reelection likelihood of a third.

Totaro goes on to run for judge. The monopoly Lancaster Newspapers, Inc. and its partners get to build its convention center project.

Is Totaro guilty of an extreme example of prosecutorial abuse?

Was there linkage?

Now Lancaster has legitimate reasons to impanel a Grand Jury to investigate what might indeed be serious crimes.

Part IV:  Witch hunt by D.A. Totaro? (Appeared December 29, 2006)

District Attorney Donald R. Totaro’s extended Grand Jury investigation of the county commissioners for Sunshine law violations yielded two $100 fines each for Commissioners Pete Shaub and Dick Shellenberger, and a single $100 fine for Commissioner Molly Henderson.

Questions have been raised concerning the extraordinary cost in staff and grand jurors’ time about a matter that both Shaub and Shellenberger had publicly apologized for in April, 2006.

The case against Molly Henderson was doubtful, involving her presence at a single staff presentation more than a year and a half after several meetings of the other two commissioners at the law firm of then county solicitors, Stevens & Lee.

Henderson apparently agreed to the citation rather than spend her primary re-election campaign in court defending a summary complaint.

Perhaps now that Totaro has completed his half-year pursuit of $500 in fines, he and his staff (and possibly the Grand Jury) can find time to directly investigate the expenditures of over $17 million by the Convention Center Authority as has been formally requested by three members of the Convention Center board.

PART V. Judge Farina Declines Interview (Appeared 7/9/07)

President Judge Louis J. Farina has declined to be interviewed by NewsLanc in reference to alleged improprieties by District Attorney Donald Totaro pertaining to the recent grand jury investigation.
In a letter dated July 5, Farina writes: “Grand Jury investigations are secret. The only thing that can be and was made public is the Grand Jury’s report when approved by the Supervising Judge. Beyond that there is nothing more I can or will say.”

NewsLanc had not sought additional information concerning the grand juries deliberations but rather whether Farina, as Supervising Judge, had provided appropriate oversight, particularly regarding the following:

  1. Whether the expanded scope was being used for a virtual witch hunt,
  2. Why an investigation of elected officials was prolonged for a year and into the primary season,
  3. Whether as “Supervising Judge” he had noted contradictions between the biased manner sixteen areas of possible concern were presented despite being later dismissed as unsubstantiated in the main text and by footnotes, and
  4. Since the grand jury did not accuse the commissioners of Sunshine Act violations based on its findings but rather recommended the plugging of apparent loopholes, had he inquired of Totaro what had caused the commissioners to agree to a plea bargain for a violation they apparently had not committed.

Below is our publisher’s letter requesting a NewsLanc interview:

Dear Judge Farina:

…Careful examination of the District Attorney Donald Totaro’s introduction and the actual artfully written grand jury report pertaining to the county commissioners causes me much concern about the appropriateness, longevity and outcome of the investigation. I count sixteen issues insinuated of possible impropriety and all sixteen dismissed for lack of evidence, albeit one must often read the footnotes to learn this. The findings of violations of the Sunshine Act were predicated solely on the commissioners’ statements.
From the report and through discussions with two of the commissioners prior to and after their plea bargain, I believe that Totaro abused his prosecutorial discretion by coercing pleas of guilty that clearly were contrary to the facts. A potential candidate for a judgeship, Totaro had personal reasons to find something amiss. The investigation was strung out for a year and apparently sought to cause the commissioners to contradict earlier testimony. The commissioners were placed in a Kafkaesque position of not knowing for what alleged misconduct they were repeatedly being interrogated.
It appears there is a need for another grand jury investigation, this one to determine if Totaro improperly used the threat of forthcoming perjury indictments to coerce plea bargains. An indictment would have virtually forced them to resign from their positions, and certainly would have made it impossible for them to seek re-election. So this isn’t just an issue of unfairness to individuals, but a virtual coup.

I understand that the investigation as later modified and expanded was authorized by you and under your supervision. I request an opportunity to interview you to learn your views and what might be done to remedy injustices…

PART V: Excerpts from Grand Jury Report
(The following demonstrates that the grand jury was unable to determine violations of current law based upon testimony. Instead, they relied upon the commissioners’ pleas to “establish” guilt).
  • “Throughout this investigation, as detailed later in this report, we were hampered by inconsistent testimony (both among witnesses and within a witness’s own testimony) and a consistent lack of any documentation to support or refute certain claims.”
  • “A public bidding process for the sale of Conestoga View was not required by the County Code.”
  • “The grand jurors heard during the investigation widely divergent views on the financial health of Conestoga View…Moreover, all of the various figures, according to the grand jury testimony, were viable depending on the accounting method used.”
  • “Mr. Espenshade’s explanation for Ms. Judge’s appointment as special counsel approximately 16 months after beginning work on the project was that any payment was contingent on Conestoga View transaction being completed and, therefore, appointment at any point before the completion of the transaction would be legal under the County Code.”
  • “The Grand Jury recommends that the General Assembly review, update and amend the County Code.”
  • “The Sunshine Act also should be amended to prohibit “avoidance techniques” currently used to avoid the Sunshine Act, including ‘information meetings’, ‘walking the halls’, and ‘back briefs.'”
  • “The Grand Jury recommends that the Commissioners” office implement stringent guidelines for determining what subject matter is appropriate to discuss outside of Sunshine and what is not.”
  • “The Grand Jury recommends a mandatory training session on the Sunshine Act for all county commissioners and administrative assistants (and) that a refresher class should be mandatory every year.”

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Chapter Forty-Three: Is the convention center project feasible? Delay seizes defeat from jaws of victory

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Updated: August 4, 2016 — 3:52 pm

1 Comment

  1. This is nonsense. Most small towns have only one newspaper.

    To repeatedly call the sale “legal” begs the question. The commissioners managed to get away with it because the sunshine law is so difficult to enforce. It’s a shame, because increasing the number of commissioners, as the Home Rule charter would have done, would have helped alleviate this concern since currently any two commissioners coming into contact with each other and discussing official business might be considered a quorum. Plus having full time legislators is kind of wasteful. But I digress.

    The sale was done in a very sneaky, secretive, and manipulative way. The public barely had any time to react. The commissioners used code words when referring to the sale to hide their intentions. I thought NewsLanc cared about transparency in government.

    Were those letters to the editor condemning the sale also part of the conspiracy? And Smithgall and Armstrong were part of the conspiracy as well?

    It is the District Attorney’s DUTY to investigate and prosecute lawlessness wherever it occurs, especially in the public’s trusted representatives.

    The intent to hide the sale from the public was obvious. They got off on a technicality. They broke the spirit of the law, if not the letter.

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