The recent indictment of union leader and power broker John Dougherty on embezzlement and corruption charges cast a shadow over Pennsylvania politics and has now raised questions over gifts to judges.
On Thursday, The Philadelphia Inquirer reported that, according to five sources familiar with the investigation, Pennsylvania Supreme Court Justice Kevin Dougherty is an unnamed family member whose conduct was mentioned in the 116-count indictment brought against the union leader and seven others. According to the report, Kevin Dougherty is “Family Member No. 4,” who, according to the indictment, received some free labor at the expense of the union.
The indictment does not indicate any wrongdoing by the justice.
Ethics attorneys were divided on whether the justice’s conduct, if it happened, could expose him to judicial discipline. But at least one attorney and Pennsylvania constitutional scholar said he hoped the report would spur broader action by the Pennsylvania Supreme Court to tighten its rules against acceptance of gifts.
DLA Piper attorney Courtney Saleski, who is representing Kevin Dougherty, said in an emailed statement that the justice “is an honest public servant who has done nothing wrong.”
“Moreover, Justice Dougherty has always properly disclosed gifts of which he was aware,” the statement said.
Among the allegations against John Dougherty, the 153-page indictment includes one saying that the union leader, who is the older brother of the justice, used union money to pay a contractor to clear snow from Family Member No. 4′s driveway in 2016.
John Dougherty has pleaded not guilty to all charges.
The indictment also says that in 2011, John Dougherty used union money to pay Anthony Massa, a contractor who is also a defendant in the case, to perform maintenance, including construction repairs and painting, on Family Member No. 4′s house, and that, in 2015, he offered Family Member No. 4 a membership to the Sporting Club at the Bellevue in Philadelphia, saying, “I got a different world than most people ever exist in. I am able to take care of a lot of people all the time.”
Attorneys noted that, if true, the conduct, especially the allegation that he received a week’s worth of free labor on his house, could violate Rule 3.13, which requires judges to report any gifts they receive. Judges must report gifts costing $250 or more. Although there is no specific dollar amount in the ethics code marking the line for when judges need to consider recusing from a case, attorneys said $2,500 is usually seen as that threshold.
Saleski disputed that the justice received any services for free, saying he declined the sports club membership and paid Massa for the work. She also said the justice and his neighbors shovel their own driveways, and “he had no reason to know who shoveled the snow on the morning identified.”
Fox Rothschild attorney Abraham Reich, who focuses on ethics, said that, based on what he’d read about the case, Kevin Dougherty’s conduct did not seem to rise to the level of an ethics problem. Regarding the allegations that his driveway was shoveled for free, Reich said that did not seem significant enough to cause the justice any ethical trouble.
“Do you think that is the kind of thing that we want to remove a judge, or sanction a judge for?” Reich said. He added that Justice Dougherty has previous recused from cases that involved his brother’s union. “It is obvious that Justice Dougherty is sensitive to these issues,” Reich said.
Not all attorneys saw matters the same way.
Duquesne University law professor and court watcher Bruce Ledewitz said that, while he does not know if the conduct raises any specific ethical violations, he hopes the Supreme Court will use the situation to make good on promises several justices made during campaigns to impose an outright ban on judges accepting gifts.
“This story illustrates a fundamental fact that I thought was clear in 2015, when every single candidate running for Supreme Court in Pennsylvania said that the court would outlaw gifts to justices,” said Ledewitz, who has focused much of his scholarship on Pennsylvania constitutional law. “He should not be accepting gifts. We pay these people very well. Justices should not be getting gifts.”
An explicit blanket ban on gifts, Ledewitz said, would eliminate any gray areas.
“This is going to keep happening until the justices outlaw gifts,” Ledewitz said. “They have the power to do this and they can do it tomorrow. I hope finally this will cause them to do it.”
The indictment against John Dougherty and his co-defendants is sprawling, accusing them of using money from the International Brotherhood of Electrical Workers Local 98 to pay for construction projects and repairs on their homes and businesses, as well as cover the costs of food, luxury and household items. Dougherty, who is the business manager of Local 98, is considered the most powerful figure in the union.
The indictment included allegations detailing conduct from 2010 to 2016, and alleged that it cost the union $600,000.
Several attorneys said the case against Dougherty mirrors in many ways the case against former state Sen. Vincent Fumo, D-Philadelphia, who in 2009 was convicted on 137 counts related to allegedly abusing his power to fund a lavish lifestyle on the tabs of taxpayers and a charity he created and controlled.
Linda Dale Hoffa of Dilworth Paxson, white-collar criminal defense lawyer and former Criminal Division chief at the U.S. Attorney’s Office in Philadelphia, said the government will try to present the case in broad terms as a wholesale theft of hundreds of thousands of dollars from the union and its members, while the defendants will likely try to portray the expenses on the granular level.
“The question is, where’s the line? The defense will want to focus on what’s gray, and the government will try to prove what is black and white,” Hoffa said. “It’s going to depend on who’s on that jury, and how they view this.”
David Zellis, a defense attorney and former Bucks County prosecutor, said the defense will likely also try to offer differing interpretations of the expenditures as a way to show that they were related to business expenses.
“There could be alternative interpretations for this spending, where they could say that it was in the best interest of the union and the members,” Zellis said. “That undermines the government’s case, if you can pull it off.”
However, he added that while some may be desensitized to the idea of company executives putting expenses on the company credit card, the spending outlined in the indictment appeared to be “beyond extravagance.” He also noted that, unlike most companies, union leaders have a fiduciary duty to its members, which will make the conduct more difficult to defend.
The deep coffers of the IBEW have helped make John Dougherty a significant political power broker in Pennsylvania politics, and his indictment is widely expected to have ramifications for the upcoming races for political office in Pennsylvania. However, several political insiders said Dougherty’s indictment may not have such a significant impact on the 2019 judicial races.
There are two main reasons for that, consultants say. The first factor is that, because the mandatory retirement age for judges was increased by five years in 2016, there are fewer contested races than usual, and the second is that the IBEW is rarely a big spender when it comes to local judicial races.
“I don’t really see it affecting things that much,” consultant Joe Corrigan of Edge Hill Strategies said.
Corrigan and others noted that, although IBEW is often a significant donor when it comes to statewide races, candidates in local judicial races don’t get the same bang for their donor’s bucks. The primary drivers for success on judicial campaigns, consultants said, are endorsements of party and good government groups, bar association recommendations, and, in Philadelphia, the luck of the draw on ballot position.
Instead of running expensive ads, judges mostly campaign by going to community events in an effort to get name recognition, consultants said.
“You have to go to every picnic, every fair you can go to,” Daniel Fee of the Echo Group said.
When it comes to statewide races, the IBEW does throw its support and money behind favored candidates, one of whom was Justice Kevin Dougherty, who, according to an article by The Legal that analyzed public campaign finance records, received nearly $1.17 million, or 26 percent of his campaign funds, from IBEW-related donors.
However, in 2019 there are only two open seats on the Superior Court, with no open races on either the Commonwealth or Supreme courts.
“I’m sure [the indictment] will have some impact,” Fee said. “But it’s much more complicated than any one player.”