AG OPINION ALLOWS IMMEDIATE STRIPPING OF EX GOVERNOR'S PENSION

An attorney general’s opinion on Friday cleared the way for Gov. Terry McAuliffe to strip the state pension benefits of his predecessor, former Gov. Bob McDonnell, without waiting for the end of appeals of the former governor’s felony corruption conviction. Attorney General Mark R. Herring advised that the governor is the ultimate employer of all statewide employees, including statewide elected officials, and can carry out a law that McDonnell signed in 2011 to take away the retirement benefits of former state employees convicted of felonies committed in the course of their duties on or after July 1, 2011, when the law took effect. McAuliffe spokesman Brian Coy said the governor, who had requested the opinion, is beginning the process of stripping McDonnell’s benefits as the law requires. It’s not really a discretionary thing under the law,” Coy said. “With this opinion in hand, we’re going to follow the process that was established in the code.”  The law requires written notice to be served on the former employee, who can appeal to circuit court to void the forfeiture.  Anthony F. Troy, a former attorney general who represents McDonnell, said that he had not yet read the opinion but expects to discuss the issues involved with McAuliffe’s office. "There are a number of issues out 
there that need to be addressed,” he said. Troy questioned whether McAuliffe, as employer, is required to apply the law and also whether the law can apply retroactively to benefits the former governor accrued before the statute took effect. 

McDonnell worked in public service about 28 years — as governor, attorney general, a member of the House of Delegates for 14 years, an assistant commonwealth’s attorney, and a U.S. Army officer. The law was proposed by Del. S. Chris Jones, R-Suffolk, now chairman of the House Appropriations Committee, whom McDonnell personally recruited as a candidate for the House of Delegates in 1997. “It’s an unfortunate situation,” Jones said Friday. “The intent (of the law) is it would apply to anyone who is employed by the commonwealth or local subdivisions who receive retirement benefits” from the Virginia Retirement System. “That would include 
statewide elected officials, a well as members of the General Assembly,” he said. Jones said he introduced the legislation because of police officers in Hampton Roads who collected their public pensions after being convicted of corruption. One of them, former Norfolk homicide Detective Robert Ford, was convicted in federal court in 2010 of accepting bribes from criminals and lying to the FBI. The same year McDonnell signed Jones’ bill into law, former Del. Philip Hamilton, R-Newport News, was convicted of bribery and extortion in federal court in Richmond for arranging a $40,000-a-year job for himself at Old Dominion University after tucking a $500,000 
appropriation into the state budget for a teacher-training program at the school. Hamilton is serving a 9˝-year sentence in federal prison, but his state pension is intact because his criminal conduct occurred before the law took effect.

McDonnell was convicted on Sept. 4 of 11 corruption counts and sentenced in January to two years in federal prison. A three-judge panel of the 4th Circuit U.S. Court of Appeals upheld the conviction last month and the former governor then asked for a hearing before the full appeals court. The convictions stemmed from charges that the former governor and his wife, Maureen, had accepted $177,000 in gifts and loans from businessman Jonnie R. Williams Sr., who wanted state help in promoting a nutritional supplement his company was selling. Maureen McDonnell initially was convicted on nine charges of corruption and sentenced to a year and one day in prison. Trial Judge James R. Spencer later threw out one of her convictions on a charge of obstruction of justice. She, too, has also appealed her convictions to the 4th Circuit, which has not ruled. The attorney general’s opinion notes that the Virginia Retirement System interprets the law to apply after conviction at the trial court level. If the conviction is reversed on appeal, the state then would reinstate the benefits. “It is worth noting that interpreting ‘conviction’ to be a judgment of conviction entered by a trial court is consistent with the practice of extinguishing a felon’s civil rights, including the right to carry a weapon and right to vote on judgment of conviction,” Herring said.