Defense disputes Orie staff campaign estimates

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State Sen. Jane Orie's defense Friday opened with an accountant's dispute over prosecution calculations of the value of time state employees may have devoted to political work for the legislator and her sister, Supreme Court Justice Joan Orie Melvin.

The 12th day of the trial also included an appearance for the defense by Stephen MacNett, the former counsel to the Republican Senate caucus in Harrisburg. Mr. MacNett testified that until a major rewrite last year, Senate rules would not have prohibited political work in members' offices, so long as it was performed on the staffers' own time.

Jane Orie, R-McCandless, and her sister Janine Orie are charged with using state resources for campaign purposes.

Detective Kevin Flanigan, a district attorney's staffer trained as an accountant, testified Friday that the Orie staffers' work on campaign chores represented between $261,684 and $552,389 in state salaries over the decade spanned by the charges. He said he based that assessment on the staffers' testimony of the proportion of their time taken up by political work.

In a separate calculation, he said that the senator derived a benefit worth $184,317 from the fact that she did not have to hire a professional fundraiser to collect the $1.8 million in contributions she raised from 2001 to 2009 with the help of her publicly paid staffers. Some witnesses have testified that professional fundraising consultants typically charge 10 percent of receipts.

As the first witness for what is expected to be a lengthy defense, Kenneth C. McCrory, a CPA, derided Mr. Flanigan's methodology, asserting that it would not pass muster under professional accounting standards. Among other things, he questioned the use of estimates made by witnesses who were "stressed and scared," while attempting to recall events that in some cases had taken place years before.

On cross-examination, Mr. McCrory acknowledged to Lawrence Claus, the lead prosecutor, that unlike Mr. Flanigan, he had not been in the courtroom to hear the various witnesses' estimates of the amount of time devoted to politics. He said, however, that he was confident of the summaries of that information provided to him by defense counsel.

As part of the assault on the prosecution numbers, James DePasquale, the attorney for Janine Orie, challenged Mr. Flanigan's conclusion on an October 2009 fundraiser for Justice Melvin that raised $36,000. Using the bench mark of a 10 percent professional consulting fee for fundraisers, Mr. Flanigan said that employee work on that event represented a value of roughly $3,600.

But Mr. DePasquale contended that his calculation wasn't supported by the facts because Justice Melvin did, in fact, have professional fundraisers working on her Supreme Court campaign.

Mr. MacNett told the jurors that the Senate had moved to change its rules after the string of prosecutions of legislative figures known as Bonusgate led to a search for clarity on what was and wasn't proper in the mixing of official and political business. Before then, the perceptions of boundaries on that issue were "mostly gray, [there was] very little black and white," he said.

Mr. MacNett said that the 2010 changes in the chamber's internal rules, supported by Jane Orie, included a clear prohibition against use of official offices for campaign work. But before that change, he said that neither the rules, nor in his opinion, the law, would have barred such activity so long as it was done on an individual's own time.

On cross-examination, he acknowledged to Mr. Claus, the prosecutor, that Senate rules, except in rare cases, could not supersede criminal law. In any case, the dispute on what work employees can perform on compensatory time is beside the point of the more basic argument between the prosecution and the defense. The defense contends that any staff political work was done either after hours or on comp time. The prosecution has worked to persuade jurors that such work was routinely done either on state time or on after-hours assignments for which the staffers were able to earn comp time, rather than have to expend it.

Other defense witnesses Friday included two former and one current staff member for the senator, who testified that they had never seen improper politicking in the office.

Jenna Morgan, a current employee of the McKnight Road district office, said she was never pressured or coerced to do campaign work. Ms. Morgan also described Jamie Pavlot, the senator's former chief of staff and a central prosecution witness, as a controlling figure who "kept the senator isolated" from other employees in the office.

Ann Lund Schiavone, a former staffer who now teaches law at the University of Akron, said she did plenty of political work while still an employee, but always on her own time. Ms. Schiavone also identified a 2001 memo from Jane Orie to the staff which read in part, "Please know that I cannot give back time considered political in nature. That would not be appropriate to a state employee to be given comp time for political reasons."

Jane Orie faces charges including conspiracy and theft of services based on the accusation that she used her Senate staff as a campaign resource for nearly a decade. Janine Orie faces two counts claiming that she helped direct the staff to aid in the campaign of Justice Melvin.

Before the defense opened, Judge Jeffrey Manning denied routine defense motions for directed verdicts of acquittal on those charges.

The defense resumes Monday as the trial moves further into its third week of testimony.


Politics Editor James O'Toole: jotoole@post-gazette.com or 412-263-1562.


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