Dan Burns’ request to lower the amount of restitution he owes for thefts from the Toledo Public Schools has been denied by the Ohio 6th District Court of Appeals, but the appellate court did agree that not all of the money should be taken from his pension.
The appellate court issued a 27-page decision Friday that affirmed the restitution amount ordered from the former TPS business manager. But the three-judge panel reversed the order to withhold the entire amount of $658,428 from his pension payments.
Instead, the appellate court stated that only the amount owed the school district -- $52,429 -- and not the additional amount owed insurance companies could be withheld from Burns’ pension.
The court then remanded the case back to Lucas County Common Pleas Court for further proceedings, “including for the school district to file a proper motion for withholding if it so wishes.”
Burns, who is serving a 10-year sentence at the Marion Correctional Institution, entered an Alford plea in December, 2010, to one count each of engaging in a pattern of corrupt activity, theft in office, and tampering with records.
He was found guilty in common pleas court for his role in a scheme that defrauded the school district between 2002 and 2006.
As part of his sentence, Burns was ordered to pay $658,428 in restitution, to be divided among the two insurance companies that reimbursed the school district and the district itself. The district’s share was $52,429, representing losses it had been unable to recoup from insurance.
The restitution was part of the plea agreement that included dismissal of 22 additional counts, including one count of theft and 21 counts of tampering with records.
Assistant County Prosecutor Kevin Pituch, who prosecuted the case, said in exchange for limiting his exposure to prison time and fines, Burns’ negotiated plea included full restitution from his pension to both the school district and bonding companies. He said the office is considering appealing the ruling.
“I’m satisfied that the court affirmed the restitution amount found by the trial court,” he said. “Of course we’re disappointed in the other aspect of the court’s decision that the restitution amount may not be withheld from his pension, since the entire plea was premised on that fact, and he agreed to that in open court.”
Attorney Karin Coble, who filed the appeal on Burns’ behalf, said that the decision clarifies that the school district is only entitled to the money it actually lost. She said that how the pension garnishment was initially ordered, TPS would receive all the restitution money, including the money owed the insurance companies.
Ms. Coble noted that Burns’ pension has already been withheld and that the Clerk of Courts now holds more than $66,000. Once the proper motion is filed, the school district will receive the $52,429 it is owed, she said.
“It’s clear that very soon the school district will be made whole,” she said.
Ms. Coble acknowledged that the insurance companies are also entitled to restitution, but that the court’s decision noted that state law does not provide for them to do it through pension garnishment.
TPS Superintendent Jerome Pecko was unavailable for comment Friday as he was at a state meeting out of town.
Burns and co-conspirator John Briggle each were convicted of their roles in orchestrating a scheme in which Briggle’s printing company, Superior Offset Supplies, billed the school district for thousands of dollars’ worth of supplies and services that were not delivered.
The men repeated the scheme in Cleveland, where both have been convicted and sentenced to prison.
Also pending in common pleas court is a motion filed in a civil case the school district brought against Burns in May, 2010, seeking to actual and compensatory damages plus the recovery of costs for a special audit and attorneys’ fees. The following year, the court granted the school’s motion and thereby awarded the school a judgment in the amount of $659,999.
Ms. Coble has since filed a motion to modify that order claiming that the school district will be made whole when it is paid $52,429, and that ordering any additional money would constitute “double recovery.”
That motion is pending before Judge James Bates.
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