Convention Center Series: Chapter Twenty-Four: Totaro’s Inquisition

By Christiaan Hart-Nibbrig

“Wherever this takes us . . .”

— Donald R. Totaro, former Lancaster County District Attorney (and current Lancaster County Judge), on the scope of a grand jury investigation he launched, November 10, 2005. The grand jury, the third impaneled in Lancaster County history, will investigate allegations of a falsified resume of a county employee.

If the Lancaster County Commissioners thought the outcry and media attention prior to the sale of the Conestoga View nursing home would abate when the final sale was approved on September 15, 2005, they were badly mistaken.

After Commissioners Shellenberger and Henderson voted to sell the facility and real estate to Complete HealthCare Resources for a $8.5 million, the issue of the sale exploded in the public arena as it had not previously. Letters kept pouring into the three Lancaster Newspapers in the days and weeks after the sale vote. The letters nearly always described “the commissioners” as a single, three-person unit.

Articles also appeared in every section of the newspapers – on the front pages, business sections, columns, editorials, and, always, the letters.

The press attention following the vote forced the Commissioners to respond. On September 22, 2005, Commissioner Shaub, at a commissioners’ meeting, asked the other two commissioners to delay the final closing of the sale, so the county could review the deal more thoroughly. Shellenberger and Henderson did not pass that motion, and the sale would close on October 1, 2005, as scheduled.

The next day, September 23, in response to criticisms of the sale, the County Commissioners revised the Conestoga View sales agreement with Complete HealthCare. The amended agreement, drafted by County special counsel, Howard Kelin, preserved Conestoga View’s mission to ensure care for the county’s indigent elderly. The changes also included keeping all 446 beds certified for Medicaid and Medicare patients.

On September 27, the Lancaster Chamber of Commerce &Industry and United Way of Lancaster County co-authored a letter which they delivered to the County Commissioners opposing the pending sale. The letter said the two organizations “cannot support the sale as presently structured.”

One day before the sale of Conestoga View would be finalized, on September 30, 2005, the Lancaster City and County Medical Society filed an action in Lancaster County Court, asking county Judge James P. Cullen to stop the sale because the Lancaster County Commissioners had negotiated in secret and failed to solicit bids. The Medical society cited “secret meetings” that went on behind the sale.

The next day, October 1, Judge Cullen denied the motion for injunction filed by the Medical Society.

All of these events were breathlessly covered by Lancaster Newspapers.

And the clamor around the now-finalized sale kept growing.

The leader in the attacks against the Commissioners over the Conestoga View sale was, without question, former Lancaster Mayor, Art Morris.

Art Morris had been a vocal critic of the Conestoga View sale since it was first publicly announced in July, 2005, at a public Commissioners’ meeting. Morris criticized the sale in his Sunday News column. He wrote letters to the editors of Lancaster Newspapers. Morris was quoted in virtually every single article about the sale in all three Lancaster Newspapers, invariably addressed as “former Lancaster Mayor, Art Morris.”

The former two-term Mayor and public works director was hardly an ‘ordinary citizen’ in any sense of the term. Art Morris was a man of note, stature, political connections, and influence in Lancaster, and he was clearly driving the Conestoga View bus.

Morris’ chief complaints were the Commissioners’ “rush” to sell the facility, and the lack of public input before the sale. He also questioned the legal bills of the Stevens & Lee law firm, which brokered the sale of Conestoga View on behalf of the county. These invoices added up to $288,000.

The final sale vote in mid-September, and the October First closing, did nothing to mollify Morris’ anger regarding the sale of Conestoga View. The former Penn State miler was not going to let go of the issue.

In a front-page article that appeared in the Lancaster New Era on October 13, 2005, “County plates now off Conestoga View vans,” the newspaper reported that Art Morris had spotted a Conestoga View van with government, i.e., county, license plates, almost two weeks after the sale closing.

A week later, on October 20, the same newspaper reported again that Morris had discovered that the Conestoga View vans were using county-issued gas cards for nine of its vehicles.

Both issues were addressed and clarified by then-County Administrator, Don Elliot, and nothing was found to be amiss with either the license plates or gas cards. But the stories were nonetheless prominently featured in the New Era based on Morris’ allegations.

Undaunted, Morris kept digging.

Art Morris was looking into every aspect of the Conestoga View sale. In this effort, he came across the county’s Chief Services Officer, Gary Heinke. Finally, the dogged Morris found himself a bone.

On October 23, 2005, Gary Heinke’s name was known to, at most, a few hundred Lancaster County citizens. In less than a week, there would scarcely be a single household that wouldn’t be familiar with Heinke’s name, and what he was said to have done.

The first article about Heinke appeared in the afternoon Lancaster New Era on October 24. The front page piece was entitled, “Who is Gary Heinke?” The article, by Bernard Harris, credits Art Morris with discovering discrepancies in Heinke’s resume, including Heinke’s claim that he earned a doctorate. The article asserts the degree in theology was from an unaccredited, correspondence “diploma mill.”

Also on the 24^th, again as a result of the pressure applied by Morris, the Commissioners announced an immediate internal investigation into the Heinke hiring. The investigation would be headed by J. Thomas Myers, head of the county human resources department, and Joseph Hofmann, a Stevens & Lee law partner. On that date, Heinke was said to have privately assured the Commissioners that the allegations made by Morris were unfounded.

The next day, October 25, Heinke was defensive. In the morning Intelligencer Journal, the article, “Heinke cries foul over scrutiny over his resume,” appeared on its front page.

In the article, Heinke said he felt under attack by Morris: “To have somebody [Morris] make a personal attack on a staff person of this county – that makes every county employee fair game for somebody who’s going to run to the press with what they think is some dust in the corner of your life that really doesn’t exist.” .

That afternoon, the Lancaster New Era on its October 25 front page, “A question of credentials,” the paper again went after Heinke. Heinke sounded like a trapped animal. “There is nothing to hide here. I have been above board with this board of commissioners and with this county from day one and I stand by that. There is nothing there that has been anything of a deceptive nature, whatsoever.”

On October 27, then-county Controller Dennis Stuckey, called for Heinke to take a leave of absence. In an article that appeared in the Intelligencer Journal “Stuckey: Go Home, Heinke,” Stuckey recommended Heinke go on administrative leave until the Myers/Hofmann investigation was completed.

“It would provide an opportunity for Heinke to get out of the mix of things here for a little while,” Stuckey said.

On October 28, 2005, in a letter to Commissioner Shellenberger, Gary Heinke resigned as Chief Services Officer for Lancaster County.

The report being prepared by Myers and Hofmann continued despite Heinke’s resignation. According to Myers, the report would be provided to the Commissioners on November 8, 2005, two weeks after it was commissioned.

Two days later, on November 10, the Lancaster County Commissioners directed Myers to release the report to District Attorney, Donald R. Totaro.

Before reading the Myers report, which would be available to the press that same day, Totaro announced his office was launching an investigation into the hiring of Heinke.

“Wherever it takes us,” was Totaro’s clipped response to a Lancaster Newspapers’ reporter’s question about the scope of the investigation.

Within days, it was apparent that District Attorney Totaro had gone to the President Judge of the Lancaster County Court, Louis J. Farina, and asked Farina for, and received, permission to use only the third grand jury impaneled in Lancaster County’s history to investigate allegations of a falsified resume.

It was clear that Totaro had launched a grand jury investigation because right after his announcement, Totaro’s office served more than 80 subpoenas on the fifth floor of the courthouse and other places, and more would follow.

Art Morris was pleased with Totaro’s probe.

“I certainly hope the process with Gary Heinke is fully reviewed and everybody’s role in that,” Morris said to a reporter from the Intelligencer Journal. “I hope it gets broadened to include the entire Conestoga View deal.”

Grand juries are normally used to investigate highly sensitive and very serious crimes, usually major felonies like murder, organized crime and racketeering, and large-scale drug activity. A Philadelphia grand jury early in 2011 investigated a doctor and his staff for multiple murders. The doctor was charged with killing nine live born babies with a pair of scissors in his abortion clinic.

Closer to Lancaster, a Harrisburg grand jury, also in 2011, was investigating several same-sex child molestation allegations against a prominent former Penn State football star and current NFL announcer.

The 23-member, 10 person-alternate Lancaster grand jury now charged with investigating the Heinke hiring, was impaneled the year before, in 2004, to investigate a high-profile local murder case.

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, and 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.

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 true bill usually results in an indictment and prosecution

District Attorney Donald Totaro’s investigation had several immediate effects.

There was now a palpable chill on the fifth floor of the courthouse, which held all the Commissioners’ offices, the department heads, and administrative staff. Virtually every staff member that had any contact with the Commissioners’ office, including all three Commissioners themselves, were served subpoenas. Speaking with each other or the press on matters before the Grand Jury was not only inadvisable, it was illegal.

The media coverage also proceeded without slowing down. On November 11, the Lancaster New Era, after its reporters and editors read the just-released Myers/Hofmann report, published “How Heinke got inside track.”

The article described how 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. …”

Lancaster Newspapers’ editors were not satisfied to leave the investigation in the hands of 23 fellow Lancaster citizens and the Office of the District Attorney.

With Art Morris again feeding stories to the Lancaster New Era, the newspaper on November 22, 2005, ran two stories – totaling more than 2,500 words – criticizing the attorneys working on the sale (“Who hired the lawyers? Stevens & Lee prepared report on which county’s controversial Conestoga View sale was based)”, and the fees associated with transaction (“How were fees of $400,000 set for selling Conestoga View?”)

Now under subpoena, the three Commissioners could say nothing

Two weeks later, on Sunday December 11, 2005, in a 3,500 word article, “Out of Commission,” Sunday News staff writer Helen Colwell Adams painted a word picture of the County Commissioners depicting them as in-fighting incompetents.

Colwell Adams surveyed several of the Commissioners’ harshest critics.

“‘I’ve never seen so many lawsuits,’ state Sen. Gib E. Armstrong, a key supporter of the convention center, said. ‘I don’t think Don [Totaro] would form a grand jury if he didn’t think he had anything,’ Sen. Armstrong said, referring to the ongoing [grand jury] investigation.’”

William “Bill” Adams, former CEO of Armstrong Industries and founding member along with Dale High, Jack Buckwalter, and Rufus Fulton, of the Lancaster Alliance, wrote on the website of Friends of Better Government, a Republican political action committee founded by Paul Thibault:

“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? Before 2005, affairs on the fifth floor already were spiraling out of control. The word ‘lame’ does not begin to describe Molly Henderson’s nervous attempts to distance herself from the disaster that is The Great Conestoga View Fiasco.”

Colwell Adams closes her massive article, which was accompanied by unflattering pictures of all three Commissioners, by quoting an anonymous “community leader.”

“Do all three of them remain for the next two years?” one community leader wondered last week.

“That’s the million-dollar question. I suspect Don Totaro might have a lot to do with that.”

The “community leader” was absolutely correct. “Don” Totaro would indeed have “a lot to do” with the political fortunes of the three Lancaster County Commissioners

The original scope of the Lancaster grand jury investigation begun by Totaro was, according to its final report, “concerned with the hiring of Gary Heinke as Lancaster County Human Services Administrator and whether any crimes, including but not limited to Unsworn falsification to authorities (18 Pa.C.S. §4904), may have been committed.”

After six months, in May, 2006, the grand jury, at Totaro’s request, and with Farina’s approval, expanded the investigation to include several other possible charges that involved the Lancaster County Commissioners.

These expanded charges, according to the report, 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. A careful reading of the final grand jury report, submitted to Judge Farina on December 14, 2006, and sealed until January 11, 2007, shows that after a 13-month investigation, costing many tens of thousands of taxpayers’ dollars, countless hours of lost labor from the grand jurors and the county staff, and a year of political paralysis for the County Commissioners, yielded no criminal charges, only two summary $100 violations against Shellenberger and Shaub, and one against Henderson.

In their own words, 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.]

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.) – “[T]he 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].

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]

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.]”

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.]

Perjury & False swearing – “[T]he 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]

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]

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

Robert Field, NewsLanc’s publisher, recalls separate conversations with both Henderson and Shellenberger to discuss whether they should accept the plea bargain.  According to Field, “Both were terrified at the implication of being indicted for something that another commissioner may have done without their knowledge.   At first I advised Henderson not to enter into the arrangement but, after a few hours of reflection, I reversed myself.  I concluded she had too much to lose  –  her position as commissioner, a fortune in legal fees, and the inherent danger involved.   When Dick Shellenberger and I met, I advised him the same.   I told both of them that the plea bargain was equivalent to getting a ticket for ‘J’ walking.  Little did I know.  But what choice did they have?  It was a ‘gotcha.’”

On that December day, in banner, front-page headlines, the Lancaster New Era reported, in headlines as if was the end of a war, “Commissioners plead guilty.”   Bold headlines continued in subsequent days.

The fact that the grand jury exonerated them 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 a relentless inquisition, District Attorney Totaro was able, albeit feebly, tp save some face with the last-minute pleas of the Commissioners. But the stain of using a grand jury for seeming political gains may not soon fade from the ambitious Totaro.

Despite the paltry “convictions,” and not a single recommendation from the grand jury for indictment or prosecution, District Attorney Totaro practically gloated. In Totaro’s official press release after the report came out, he stated: “The decision to submit the Heinke matter to an Investigative Grand Jury was made after the Lancaster County Board of Commissioners and their designees initially failed to respond to a request for a production of documents through traditional investigative means.”

In the release, Totaro cited unspecified documents that were “not archived”; a suspicious “32-minute” phone conversation; and “interview notes” that were not available as the reasons he launched the investigation.

“These factors were significant in concluding that an investigation to determine whether any crimes were committed could only be accomplished through the resources of an investigating Grand Jury, and demonstrated that immediate action was necessary to preserve any remaining documents,” Totaro wrote.

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, kept “in the dark” about the sale of the facility, and of the many meetings attended by Shaub and Shellenberger and solicitor Espenshade. Henderson, according to testimony, attended exactly one meeting at which no deliberation took place, yet her name was besmirched and maligned with the other Commissioners for the duration of the year-plus secret grand jury proceeding.

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.

What did matter was that in the minds of Lancaster County citizens, abetted by an incessant drumbeat from Lancaster Newspapers, the Lancaster County Commissioners were “guilty,” they were crooks, and they shouldn’t be in office.

It is telling the level of detail with which Lancaster Newspapers devoted to examining every minute aspect of the sale of Conestoga View sale. The coverage far surpassed its analytical coverage of the convention center-hotel project, which was far more expensive, and in which Lancaster Newspapers held an equity stake.

The grand jury investigation occurred at a time when many revelations were being made public about the nearly $20 million in consultants’ fees paid by the Lancaster County Convention Center Authority. The editors of Lancaster Newspaper chose to ignore those issues.

The saturation coverage of the Conestoga View issue was usually reserved for wars, Presidential impeachments, or mass murder. The coverage of this sale lasted for more than a year and half. It dominated the local news – controlled by Lancaster Newspapers – in Lancaster County more than any other story in its history.

The purpose of the overkill coverage of Conestoga View appears to have been two-fold. First, Conestoga View pushed the Convention Center issue into the background. As a news issue it served as a red herring. It was a good distraction. Corrupt politicians in the era of ‘Midnight Pay Raises’ secretly selling out the old people. Great story, but fiction.

And after the grand jury was convened, Commissioners Shellenberger and Henderson were wary of bold public positions on anything, and grew more timid on the Convention Center issue.

The other function of the blanket Conestoga View coverage was that it ensured that Commissioners Shellenberger and Henderson would not be re-elected. The two were forever linked with the “dysfunctional” board.

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,” she wrote.

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 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.

Only 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.

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

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