Pawtucket judge fights for pension as RI says she’s not eligible

by: Eli Sherman, Tim White

PAWTUCKET, R.I. (WPRI) – Pawtucket and state officials have spent two years engaged in a behind-the-scenes fight with a pair of municipal judges who they argue didn’t work enough hours to receive pensions.

ORIGINAL NOTE: https://www.wpri.com/target-12/pawtucket-judge-fights-for-pension-as-ri-says-shes-not-eligible/

The two judges, former state Sen. Donna Nesselbush and her colleague Jack Gannon, have pushed back. They’ve argued that while Pawtucket Municipal Court is only open for a handful of hours each week, they spend many more hours working outside the courtroom and thus should qualify for benefits from the Employees’ Retirement System of Rhode Island.

“Judge Gannon and I not only handle and adjudicate all aspects of government of Pawtucket’s high-volume traffic and housing caseloads, we also constitute the judicial branch of government for the city of Pawtucket,” Nesselbush wrote in a December 2022 email to state officials asking them to reverse an initial decision to yank her pension.

“In order to adjudicate cases on the bench, we have to have already reviewed the cases, considered the cases and researched the legal issues as necessary,” she added.

Fast forward to this spring, and Gannon tells Target 12 he’s no longer disputing the issue. But documents obtained through a public-records request show Nesselbush — who declined to be interviewed for this story — is appealing a second state decision to rescind her city pension benefit that she paid into for nearly two decades.

She has hired former R.I. House Speaker John Harwood to represent her in the current appeal.

As part of her argument to the state, the former senator — who left office in 2021 — went so far as to write herself a job description under city seal that she submitted as proof she should qualify for the pension. Initially, the attempt worked and the state told city officials they should resume contributing toward the judges’ pensions.

But the city sought outside legal counsel and provided additional documentation to the state, arguing the judges don’t work anywhere close to the 20-hours-per-week threshold that’s required to receive a pension. The state subsequently sided with the city and again yanked the pensions.

City officials have also taken issue with Nesselbush trying to pass the job description off as something they say it’s not.

“I don’t write my own job description,” said Ryan Holt, chief of staff to Pawtucket Mayor Don Grebien. Any such job description would need to be approved by the Pawtucket City Council in accordance with separation of powers, he said, calling the document inappropriate.

“They submitted this job description that included this inflated view of their hours worked,” Holt said.

To qualify for a state pension, a municipal employee must work at least 20 hours per week, which city officials argue far exceeds what’s required of municipal judges.

The dispute began in the summer of 2022, when city officials reached out to the state to express concern that they were contributing to pensions for judges who shouldn’t qualify. The state responded with a series of questions, according to documents reviewed by Target 12.

“Do they work 20 hours in the 3 days or less?” ERSRI official Gayle Mambro-Martin wrote to city officials on July 18, 2022.

“No, they do not,” responded Sara Miranda, Pawtucket human resources coordinator.

In August 2022, state officials sent letters to the judges notifying them they didn’t qualify. They directed the city to pay back Nesselbush $14,345 for the money she’d contributed into her plan over the years. Gannon was slated to receive $3,000.

The city would be credited about $75,000 for its contributions toward the plan.

In December 2022, Nesselbush wrote an email to the state, saying she was “taken aback” when she received her letter and that she planned to appeal. She then provided the self-created job description as proof of her hours.

“Imagine receiving such a letter after paying into the system collectively for almost 30 years (18 for me and 10 for Judge Gannon) and relying all those years on a future pension benefit,” she wrote. “Ms. Miranda unfortunately provided incomplete information to you.”

Nesselbush also included a letter of support she received from former City Council President Dave Moran, who wrote that judges “most certainly are considered city employees.”

“I fully understand that your and Judge Gannon’s work to run the judiciary and effectuate a number of special projects, means that your position as judges for the city involves more than just the hours you spend on the bench,” Moran wrote.

In the job description, Nesselbush wrote that judges worked 20 hours per week and had “access to city health insurance and participation in the MERS pension system.” (MERS is the acronym for the arm of the state pension system that covers municipal employees.)

Her threat of appeal worked — temporarily.

Last September, ERSRI official Eric Motta wrote a letter to city officials saying they’d determined Nesselbush and Gannon “are to remain in the MERS plan,” and he directed them to resume contributions toward their pensions.

But it didn’t stick. The city’s outside attorney, Vincent Ragosta Jr., reached out to the state, spurring officials to take a closer look at the job description provided by Nesselbush.

“We take this opportunity to request additional clarification of the city’s position regarding the eligibility of these individuals for membership in the retirement system,” ERSRI executive director Frank Karpinski wrote on Nov. 8 to Pawtucket City Council President Terence Mercer.

He requested more information about who determines the duties of employment for municipal judges, and asked whether the City Council had ever certified the details provided in Nesselbush’s self-created job description.

“Once we have received responses to these questions, MERS will be able to reach a final determination as to whether or not Chief Judge Nesselbush and/or Associate Judge Gannon (and/or other similarly situated Municipal Court Judges) are eligible for membership in the retirement system,” he wrote.

After some more back-and-forth with the city, ERSRI officials decided to officially disqualify the judges from the pension system on March 11.

“We have undertaken a review of the information provided to our office by the city, and based on the information made available to us we have determined that the Pawtucket judges should not have been enrolled in the Municipal Employees’ Retirement System,” Karpinski wrote in a letter to Grebien.

On May 7, Harwood filed a notice of appeal on behalf of Nesselbush, saying “the basis for the appeal is to correct fact and legal errors and to allow Donna M. Nesselbush to present her case as it relates to her position as chief judge of the city of Pawtucket.”

The state pension system is overseen by General Treasurer James Diossa. His spokesperson, Michelle Moreno-Silva, told Target 12 a hearing will be scheduled for the appeal.

It’s unclear whether the issue is happening in other cities and towns that participate in the state-run pension system for municipal employees.

Moreno-Silva said there was only one other case on the state level, which began in 2019. It remains pending. Karpinski asked Pawtucket officials to provide a list of all past municipal judges to see if anyone else is improperly receiving pension benefits.

Holt acknowledged that the pension benefits Nesselbush and Gannon would have received were relatively small. But he argued that fixing this problem was in the best interest of taxpayers.

“Regardless if it’s a dollar or it’s a million dollars, we want to make sure the taxpayer’s dollars are spent correctly and efficiently,” he said. “Its about doing the right thing.”