EX-TPS OFFICIAL

Judge rules that Burns can receive refund

Ex-business manager stole TPS funds; part of pension being used to pay back district

7/31/2013

Burns

THE BLADE/JETTA FRASER
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A former Toledo Public Schools’ official convicted of stealing more than $650,000 from the district will be getting his public pension, and a refund based on a court ruling on Tuesday.

Judge Ruth Ann Franks, of Lucas County Common Pleas Court, on Tuesday ordered that a portion of the money from Daniel Burns’ pension now held by the clerk of courts be disbursed to TPS with the remainder transferred to Cuyahoga County for restitution to the Cleveland Metropolitan School District where Burns also stole funds. Any money left over after that must be returned to Burns, Judge Franks reluctantly ruled.

“It sends the most odoriferous message that someone can steal and benefit by payment through a bonding company when that’s the amount he or she stole,” the judge said.

Burns, 57, the former TPS business manager, was convicted in December, 2010, of engaging in a pattern of corrupt activity, theft in office, and tampering with records for his role in a scheme to defraud the district between 2002 and 2006.

He was sentenced to 10 years in prison and ordered to pay $658,428 in restitution to TPS and the bonding companies that had reimbursed the district for nearly $600,000 of its loss.

Last year, though, Ohio’s 6th District Court of Appeals ruled that only the district’s “actual loss” — $52,429 — could be withheld from Burns’ pension. His pension could not be tapped to repay the bonding companies, the appeals court ruled.

Saying that she respectfully disagreed with that decision, Judge Franks said she found it “very frustrating” that any money at all would be returned to Burns after he stole so much.

“The thing that I find troubling … is if what is said by the 6th District means that a public official, if he or she is in a position where the entity has a bonding company, and they have a large sum of money based on a pension, and the man or woman is stealing from that same entity during that time, it’s almost like [winning] the lottery,” she said. “I just don’t understand that.”

Karin Coble, an attorney for Burns, had asked the court to return all excess funds to Burns, arguing that Cleveland public schools could not legally receive funds collected as restitution in the Lucas County case.

The Cleveland district is owed $75,464 from Burns for losses from a similar scheme.

“The statute allows Cleveland, as a public entity, to file a motion in a case in which they were a victim for garnishment,” Ms. Coble said. “The statute does not allow a public entity to appear in any other matter in which they are not a victim and garnish those same funds.”

Judge Franks dismissed the argument and ordered that once Toledo Public Schools are reimbursed the $52,429 due to it, the rest of the escrowed funds be transferred to Cuyahoga County for disbursement to the Cleveland school district. Any excess money from Burns’ pension would then be returned to him.

Burns’ monthly pension from the School Employees Retirement System of Ohio is $6,811 a month or $5,192 after taxes. Once the restitution orders are fulfilled in Lucas and Cuyahoga counties, that check will go to him wherever he directs the state system to send it.

Judge Franks said it would take action by the state legislature to change state law that prevents TPS from garnishing Burns’ pension for the full amount of restitution.

State law permits public entities to garnish the pensions of public employees convicted of theft in office, but only for the actual loss incurred by the entity. There is currently no legislation introduced in Ohio to change it.

“This man stole in Lucas County over $600,000, and all of a sudden we’re giving him money back,” Judge Franks said with obvious disgust.

“It is totally outrageous and inequitable for a criminal to benefit under those circumstances so if there is a loophole in the law … I hope that the legislature quickly addresses this,” she said.

Kevin Pituch, an assistant Lucas County prosecutor who prosecuted the Burns case, said Burns still is obligated to repay the full $658,428, but it’s unlikely he ever will if his pension is all he has.

“The message now is if you steal, make sure they’re bonded, because then they can’t take your pension,” Mr. Pituch said.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.