CC Series Chapter 23 Revised: The Inquisition

Lancaster County Commissioners Dick Shellenberger and Molly Henderson initiatives during 2006were among the most remarkable aspects of the convention center’s history.

The two Commissioners, one Republican, one Democrat, had come to believe it was their duty to protect Lancaster County taxpayers concerning the downtown convention center and hotel project.

Chairman Shellenberger and Henderson were convinced the project was simply too risky and disproportionately dependent on taxpayer subsidies. Beginning with the 2005 ’57 Questions,’ the Commissioners kept hammering at the project, which had ballooned in size, scope, and cost since its inception.

In 2006, with the PKF feasibility study, County Resolutions 36 and 37, court challenges to Act 23, and through County-appointed surrogates on the LCCCA board, Shellenberger and Henderson persisted in picking at the project.

But the truly remarkable thing about Shellenberger and Henderson weren’t their actions, per se – which also included defending themselves in a lawsuit brought against them by project sponsors – it was that those actions were conducted under the ominous backdrop of a grand jury investigation in which they, and fellow Commissioner Pete Shaub, were the targets.

In November, 2005, only the third grand jury impaneled in Lancaster County’s history was charged with investigating the hiring of Gary Heinke, who resigned as Chief Services Officer for the County in late October, 2005.

The grand jury investigation, approved by Lancaster County President Judge, Louis Farina, and led by District Attorney, Donald Totaro, was launched despite Heinke’s resignation and a contemporaneous and definitive internal investigation report by the County’s Human Resources director, Thomas Myers.

Myers concluded that Heinke had falsified his resume, but not his official application to the County, and thus did not break the law, the same as the grand jury was to determine.

On November 10, 2005, the day the Myers Report was scheduled for release, Lancaster County District Attorney Donald Totaro announced his grand jury investigation, and blanketed the fifth floor of the courthouse building with more than 80 subpoenas, including the administrative staff and  all three Lancaster County Commissioners.  More subpoenas would follow.

Grand juries are traditionally used to investigate highly sensitive and very serious crimes, major felonies such as murder, organized crime and racketeering, and large-scale drug activity.

Such was the case with the 23-member, 10 person-alternate Lancaster grand jury, originally impaneled the year before in 2004 to investigate a high-profile local murder case, now charged with investigating the Heinke hiring.  So that grand jury would look into charges of a falsified resume by a County employee who had already resigned from his job.

The power of a grand jury is immense. In addition to being empowered to subpoena witnesses, grand juries can subpoena documents and records, including banking and business documents, telephone and computer records. Failure to comply with a grand jury subpoena is punishable by imprisonment.

Grand juries are a prosecutor’s, in this case District Attorney’s, domain. The District Attorney selects the grand jurors. There is no defense attorney to check the selection. It is the DA’s office that serves the subpoenas.

Even innocent people would fear the possibility of an attorney general achieving an indictment from a grand jury.  Tom Wolfe in The Bonfire of the Vanities writes “a grand jury would indict a ham sandwich if that’s what you wanted.” The saying originated with Sol Wachtler, a  former New York State chief judge.

The grand jury deliberations, which are secret, often last a year or longer. There is no judge present during the grand jury sessions. Their charge is to return a ‘presentment’ of a ‘true bill’ or ‘no true bill.’ A presentment of a true bill usually results in an indictment and prosecution.

Totaro’s investigation cast a palpable chill on the fifth floor of the courthouse. Virtually every staff member that had any contact with the Commissioners’ office, including all three Commissioners themselves, was served a subpoena. Speaking with each other or the press on matters before the Grand Jury was not only inadvisable, it was illegal.

Meanwhile, the media coverage critical of the Commissioners for selling Conestoga View, already heavy, continued.

The day after the grand jury investigation began, the Lancaster New Era published “How Heinke got inside track,” detailing how Shellenberger and Shaub sent Heinke advance material in preparation for his County interview.

The New Era article reported  Commissioner Shellenberger provided Heinke with information and resources about the Chief Services Officer position, but didn’t provide the same help to other candidates prior to being interviewed.

The Associated Press even picked up the story. On November 18, 2005, the AP ran an article that began:

“LANCASTER, PA, (AP) – The Lancaster County commissioners and dozens of county employees may soon be telling a grand jury what they know about the hiring of a human services director who resigned after being accused of falsifying his credentials. The Lancaster New Era reported Thursday that prosecutors have been serving subpoenas this week and that everyone who works in the commissioners’ office received one. At issue is the hiring of Gary D. Heinke, who was a friend of Commissioner Richard Shellenberger. …”

The editors at Lancaster Newspapers, Inc. – over 40% owner of Penn Square Partners – were not satisfied leaving the investigation in the hands of 23 fellow Lancaster citizens and the Office of the District Attorney.

On Sunday December 11, 2005, in a 3,500 word article, “Out of Commission,” Sunday News staff writer Helen Colwell Adams  summarized recent controversies, gave the prepondence of voice to supporters of the convention center project and / or  critics of the commissioners,  discussed the grand jury investigation, and then added the following by local luminary state Sen. Gibson Armstrong:

“ ‘I’ve never seen so many lawsuits,” state Sen. Gib E. Armstrong, a key supporters of the convention center, said. As Friends of Better Government, a Republican political action committee, asked acidly on its Web site last month: ‘A question for our local historians: Was a board of commissioners in Lancaster County ever under criminal investigation by the district attorney — that is, before 2005?’ ”

“Speculation is rampant about Totaro’s intentions. He generally uses grand juries to investigate unsolved murders and other violent crimes; employing one for a doctored resume seems unusual to those who know him.

“ ‘I don’t think Don would form a grand jury if he didn’t think he had anything,’ Sen. Armstrong said.”

Given the traditional use of a grand jury to investigate heinous offenses, a large portion of the Lancaster population including reporter Helen Adams, likely agreed!

District Attorney Donald Totaro had said the Grand Jury investigation of the County Commissioners was to inquire into violations of the state’s criminal laws regarding a job application. However, the Grand Jury soon established that there were no violations.

Thwarted by the grand jury’s unwilling to indict concerning Heinke’s resume, Totaro then sought and received permission from President Judge Louis Farina to expand the investigation to 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.

After six months, in May, 2006, the grand jury, Totaro requested and obtained Judge Farina’s approval, to expand the investigation to include several other possible charges that involved the Lancaster County Commissioners.

These expanded charges included:

– Criminal conspiracy (18 Pa.C.S. § 903),

– Penalty for neglect or refusal to perform duties (16 P.S. § 411),

– Meetings open to public (16 P.S. § 460),

– Assistant County Solicitors (16 P.S. § 904),

– Contract procedures; terms and bonds; advertising for bids (16 P.S. § 1802),

– Authority to sell or lease real property (16 P.S. § 2306), and

– Open meetings (65 Pa.C.S. §701 et seq.)

The grand jury took another seven months to investigate the additional charges.

On December 14, 2006 the final grand jury report was submitted to Judge Farina on December 14, 2006, and sealed until January 11, 2007.

A careful reading of the grand jury report shows that after a 13-month investigation, no criminal charges were presented.  Instead, they reported on only two summary $100 violations against Shellenberger and Shaub, and one against Henderson.

Moreover,  the ‘violations’ were not based on any finding by the jury but only resulted from a plea bargain after the grand jury hearings had ended  but before the jury’s report was made know to the commissioners and to the public.

Here is what the grand jury found on the charges:

– Unsworn falsification to authorities (18 Pa.C.S. §4904) – “The grand jury has concluded that Mr. Heinke’s actions do not rise to a level where a presentment for a violation of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) is warranted.” [Grand Jury Report, page 17. Emphasis added.]

– Criminal conspiracy (18 Pa.C.S. § 903) — The Grand Jury Report did not comment on this charge.

– Penalty for neglect or refusal to perform duties (16 P.S. § 411) — The Grand Jury Report did not comment on this charge.

– Meetings open to public (16 P.S. § 460), Open meetings (65 Pa.C.S. §701 et seq.) – “The grand jury declines to issue a presentment for 16 P.S. § 460 (Open meetings) or 65 P.S. § 701et seq. (Open meetings).” [Grand Jury Report, page 19]; the grand jury declines to issue a presentment for 16 P.S. § 460 (Open meetings) or 65 P.S. § 701 etseq. (Open meetings).” [Grand Jury Report, page 20]; “[T]he grand jury declines to issue a presentment for 16 P.S. § 460 (Open meetings) or 65 P.S. § 701 et seq. (Open meetings).” [Grand Jury Report, Page 31. Emphasis added.]

– Assistant County Solicitors (16 P.S. § 904) – “The grand jury declines to issue a presentment for a violation of 16 P.S. § 904 (Assistant county solicitors).” [Grand Jury Report, page 27. Emphasis added.]

– Contract procedures; terms and bonds; advertising for bids (16 P.S. § 1802) – “A public bidding process for the sale of Conestoga View was not required by the County Code. Section 2306.1 of the County Code, entitled “Authority to sell certain real property and personal property as a single unit”, specifically exempts the sale of an “institution for the care of dependents”, which includes a county-owned nursing home, from “any other provision of law” except that such a sale must “only comply with the provisions of [the County Code] relating to the sale of real property.” Moreover, that same section includes the sale of personal property when that personal property is sold in conjunction with the sale of real property. In light of the applicability of 16 P.S. § 2306.1 to the sale of Conestoga View, the grand jury declines to issue a presentment for a violation of 16 P.S. § 1802 (Contract procedures; terms and bonds; advertising for bids).” [Grand Jury report, page 27. Emphasis added.]

– Authority to sell or lease real property (16 P.S. § 2306) – “In light of the applicability of 16 P.S. § 2306.1 to the sale of Conestoga View, the grand jury declines to issue a presentment for a violation of 16 P.S. § 1802 (Contract procedures; terms and bonds;advertising for bids).” [Grand Jury Report, page 22. Emphasis added.]

Perjury & False swearing – “The grand jury declines to issue a presentment for 18 Pa.C.S. § 4902 (Perjury) or 18 Pa.C.S. § 4903 (False swearing).[ Grand Jury Report page 11]; “[T]he grand jury declines to issue any presentments for violations of 18 Pa.C.S. § 4902 (Perjury).”[Grand Jury Report, page 29] ; “[T]he grand jury declines to issue a presentment against Commissioner Shellenberger for either 18 Pa.C.S. § 4902 (Perjury) or 18 Pa.C.S. § 4903 (False swearing)” [Grand Jury Report, page 35, Emphasis added]

Intimidation of witnesses or victims 18 Pa.C.S. § 4952 – “[W]e do not find that it rises to the level required for a presentment for a violation of 18 Pa.C.S. § 4952 (Intimidation of witnesses or victims).” [Grand Jury Report, page 11, Emphasis added]

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.

On the day the grand jury submitted its 39-page report to Judge Louis Farina, December 14, 2006, the three Lancaster County Commissioners, not knowing what the report would reveal after more than a year of testimony, with the threat of imminent prosecution held over their heads, and entering an election year, pleaded guilty to summary violations of the Sunshine Act. Shaub and Shellenberger pleaded guilty to two counts; Henderson to one.

At the time that the district attorney’s office proffered  a ‘plea bargain’ of accepting a slap on the hand for violation of the Sunshine Law, both Dick Shellenberger and Molly Henderson separately met with a confidant to seek advice.  According to the party, both were traumatized and with good reason.  Although neither believed that they had violated any law, the three commissioners were not permitted to  discuss the grand jury investigation among themselves, so each feared another  may have broken the law and testified in a way that might implicate them.

Both Shellenberger and Henderson were perplexed and concerned about the meaning behind  the lengthy duration of the grand jury deliberation, fearing the jury may have found something amiss.  They recognized that an indictment, no matter how unlikely to lead to a conviction, would put them in a position of resigning, of devoting a year preparing for  trial, and spending upward of $50,000 in legal fees.

Both told the observer they had acted upon the advice and under the supervision of the county solicitor concerning the Sunshine Act, which by law should have exonerated them.  But even believing in their innocence, they and the observer  concluded it practical to accept a plea bargain to a minor violation than to expose themselves to a possible indictment by what they considered to be a politically motivated district attorney..

The $100 per violation fines were amounts similar to first-time speeding tickets.

On that December 14th day, in banner front-page headlines, the Lancaster New Era reported, as if it was the end of a war, “Commissioners plead guilty”.  (More accurately it could have read ‘Commissioners cleared of allegations.’)  Front page follow up articles along the same tenor followed for two more days.

The fact that the grand jury exonerated the Commissioners on the charges surrounding the investigation – the hiring of Gary Heinke and the legality of the sale of Conestoga View – was not emphasized by Lancaster Newspapers’ editors.

After one year of relentless inquisition, District Attorney Totaro was able, albeit feebly, to save a modicum of face with the last-minute plea bargains of the Commissioners.  But the stain of using a grand jury for seeming political gains may not soon fade from the  Totaro’s legacy.

After reading the grand jury report, William H. Lamb, a West Chester attorney and former Pennsylvania Supreme Court justice who represented Commissioner Shellenberger, said he was “surprised that the district attorney would engage in such a lengthy and extensive investigation to address a summary offense.”

“To quote Peggy Lee,” Lamb said, “Is that all there is?”

It was not true that the $100 fines imposed on Commissioners Shaub, Shellenberger, and Henderson was ‘all there was’ to the Conestoga View sale.

There was carnage.

It didn’t matter that the grand jury report could find no crimes to present for prosecution.

It did not matter that Commissioner Henderson was deliberately, according to the report, was  kept “in the dark” about the sale of Conestoga View.

It did not matter that of the many meetings attended by Shaub, Shellenberger and solicitor Espenshade,  Henderson, according to testimony, attended exactly one meeting at which no deliberation took place.

It did not matter that both Shaub and Shellenberger campaigned on a platform of reducing the size of government, and selling Conestoga View fit in exactly with that mandate.

It did not matter that clearly the Commissioners were relying on the advice of counsel and established case law.

It did not matter, as Shaub pointed out, that commissioners were entitled to meet outside the public view to discuss personnel matters, and the jobs of hundreds of Conestoga View county employees were involved.

Nor did it matter that, concerning the Sunshine Act, the grand jury, whose own investigation did not support a finding of wrong doing by the commissioners apart from the later plea bargain, commented:

“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.’”

What did matter was that in the minds of Lancaster County citizens, the Lancaster County Commissioners were “guilty,” they were crooks, and they should be kicked out of office.

For the more than a year until the ends of their terms, the Sunday News ran on its editorial page a numerical countdown “Until the ends of the terms of Commissioners Shellenberger and Henderson.”

The grand jury investigation occurred for the whole of 2006, at a time when many revelations were being made public about the project. The editors of Lancaster Newspaper chose to ignore or under report those issues, instead focusing on the castigation of the Commissioners over Conestoga View.

After the report became public, the Commissioners’ responses also didn’t seem to matter.

I believe my actions complied with all the legalities and have worked hard for the last year and a half to shine light on the CV (Conestoga View) process,” Henderson wrote in an e-mail to the New Era. “I have accepted a citation for one meeting because, although in July 2005 I publicly asked for additional public input before signing the CV sale agreement, this input should have been sought soon after the April meeting.”

Shellenberger said, in part, in response to the report:

“[T]he Grand Jury acknowledged the hazy line for what the law does and does not require an elected official to conduct in a public forum. … This is why I relied on the informed advice of counsel as often as it was offered to me.”

Shaub, in a hand-written public response to the report, quibbled over some of the sales transaction details, and made a specific point to exonerate Henderson:

“I believe in my testimony that I acknowledged that I told persons to not discuss the CV [Conestoga View] sale with Commissioner Henderson at the direction of Mr. Espenshade.”

The political carnage was substantial. Commissioner Shaub soon resigned a year before his term ended. Shellenberger announced in March, 2007, that he would not run again. Only Henderson attempted to retain her seat, but was soundly defeated in the fall.

On the other hand, Donald Totaro, who later that year was overwhelmingly elected a Lancaster County Judge, came away unscathed from the Conestoga View fiasco.

“The Grand Jury Report clearly documents a betrayal of the public trust by those who were elected by those who were elected to represent the citizens of Lancaster County,” Totaro said in his press release after the report came out.   This must have been news to member of the grand jury.

Given the time, expense, and secrecy of his year-long “investigation” and what the Grand Jury Report actually concluded, Donald Totaro might well have been speaking about himself.