Opening Salvo Fired in NorCo DA Race

Though he's just stepped down from the judicial heavens and has yet to announce his candidacy,  Retired Judge Steve Baratta has fired the opening salvo in what promises to be an ugly primary race for Northampton County District Attorney. Republicans will love this. 

In a 65-page memo sent to Northampton County Council, Executive Lamont McClure and Attorney Disciplinary Board, Baratta contends there's a conflict of interest in the District Attorney's office. He asserts that First Assistant DA Richard Huntington Pepper, a full-time employee, still maintains a private practice. He notes that Pepper not only rents office space from a prominent criminal defense attorney, but approves all plea agreements coming from him. Finally, he asserts that Pepper improperly represented someone accused of harassment. Baratta, who would like to be District Attorney Baratta, obviously has political motives. He seeks an investigation.

I've summarized Baratta's complaint, but think you should read it yourself.  (I redacted his email and home address)  I will then tell you how District Attorney Terry Houck responded. 

Baratta's Complaint

As a resident and citizen of Northampton County, I submit this request for an investigation into the Office of the District Attorney for the County of Northampton (“Office of the District Attorney”), Pennsylvania, specifically, into the actions of the District Attorney, Terrance P. Houck (“Mr. Houck” or the “District Attorney”) and his First Assistant District Attorney, Richard H. Pepper, Esquire (“Mr. Pepper”).

I. Background

In 1996, Northampton County converted the position of District Attorney, which Mr. Houck currently occupies, from a part-time to a full-time position whose duties and responsibilities are defined at Section 1401, Title 16 of the Pennsylvania Consolidated Statutes. Section 1401(2)(k) directs that a full-time district attorney is not permitted to accept any civil or criminal cases and is also subject to the Rules of Professional Conduct and the Canons of Ethics as applied to judges in the Courts of Common Pleas for the Commonwealth of Pennsylvania. Further, Section 1401(2) (o), instructs that the Judicial Rules and the Canons of Ethics are specifically applicable to the district attorney’s salary, full-time duties, and conflicts of interest.

On February 16, 2006, Northampton County Council adopted Resolution 21-06, converting the position of part-time First Assistant District Attorney to a full-time position, Group VI Career Exempt Scale. Resolution 21-06 did not provide any authority or permission for a full-time First Assistant District Attorney to run, manage, or direct a separate, private legal practice.

All Northampton County Assistant District Attorneys are full-time county employees. Further, like the prohibition against the District Attorney himself, all full-time Assistant District Attorneys are prohibited from engaging in the private practice of law. This prohibition had been rigorously enforced by our previous District Attorney, John Morganelli, who is currently a Judge with the Court of Common Pleas for Northampton County.

II. Concerns Raised

The position of full-time First Assistant District Attorney is occupied by Mr. Pepper. Mr. Pepper has been so employed for the last three years. Mr. Pepper is the second highest salaried the employee in Northampton County, earning approximately $130,000 per year. Mr. Pepper’s salary is only exceeded by Mr. Houck. When Mr. Pepper was hired by Mr. Houck as his First Assistant, Mr. Houck quietly and without the knowledge and approval of County Council, and in violation of the rules governing the full-time staff of the Office of District Attorney, permitted Mr. Pepper to maintain his robust private practice of law in both Northampton County and Lehigh County, Pennsylvania, representing civil clients in general legal disputes and family matters.

During business hours when Mr. Houck’s office is in full operation, Mr. Pepper can be frequently seen walking back and forth from the Office of the District Attorney to his private legal office located 717 Washington Street, Easton, Pennsylvania, apparently to conduct his private practice. In addition, Mr. Pepper can frequently be found in the halls of both the Northampton and Lehigh County Courthouses conducting legal business on behalf of his private clients.

Mr. Pepper’s private office is located within a legal office owned by a high-profile criminal defense attorney. Mr. Pepper rents office space or is provided office space within the office of the defense attorney. Thus, when the criminal defense attorney’s clients walk into that building, these clients learn that the First Assistant District Attorney of Northampton County, Pennsylvania has a business relationship with their criminal defense lawyer. This is a clear conflict of interest for Mr. Houck. However, what should be of even greater concern is that Mr. Houck’s has delegated to Mr. Pepper the authority to negotiate plea bargains with defense counsel, including the authority to overrule the staff attorneys working under Mr. Pepper. Further, even if one were to assume that Mr. Houck was operating under a misguided interpretation of the law addressing this legal conflict and he assumed that the conflict could be somehow avoided, Mr. Houck failed to implement a written office policy constructing the proverbial “Chinese Wall” to prohibit Mr. Pepper from negotiating his landlord’s cases. Mr. Houck merely turned a blind eye to the self-created conflict of interest and allowed Mr. Pepper to conduct the District Attorney’s business without concern.

To make this conflict even more unsettling, in 2020, Mr. Pepper represented a husband who was charged by the Freemansburg Police Department of Harassment (by physical contact) - a summary offense. Wife was the alleged victim. Husband was found guilty of Harassment by a Magisterial District Judge. Husband appealed his conviction. This domestic violence case was finally resolved by a guilty plea before Judge Paula Roscioli in Summary Appeals Court on July 12, 2021. During the pendency of that summary criminal case, the female victim apparently wrote a letter to Mr. Houck complaining about the clear conflict of interest created by Mr. Pepper’s representation of her husband. However, Mr. Houck failed to take any action on the complaint. Eventually, a request was made to Mr. Houck seeking a copy of the letter sent by wife complaining about Mr. Pepper under Pennsylvania’s Right to Know Law (RTKL). The requestor was husband’s new attorney. Mr. Houck refused to release the letter citing his claim that the letter should remain confidential because the letter was part of an ongoing criminal investigation. The refusal to release the letter was appealed under the Right to Know Law and heard before Judge John Morganelli. During the June 8, 2022 hearing, Mr. Houck continued to claim that under the RTKL wife’s complaint letter could not be released due to an ongoing investigation; however, the guilty plea the year before concluded the case long before the Right to Know Hearing. I suggest that a review of the transcript of the hearing will establish: (1) Mr. Houck was fully aware of Mr. Pepper’s private practice of law; (2) Husband’s new attorney recognized the conflict created by Mr. Pepper’s representation of husband and the District Attorney offered no objection to that characterization; and, (3) The criminal case was finally resolved by a guilty plea by husband, therefore there was no ongoing investigation and by logical extension the claim of an existing investigation calls into question Mr. Houck’s candor to both the court and the citizen requestor seeking the letter under the RTKL.

In conclusion, I ask: How can the District Attorney allow the second highest salaried employee in Northampton County to maintain a private practice (a second job during work hours) where no other employee working for the District Attorney, or, for that matter, any full-time employee working for the County Executive of Northampton County, is permitted to do the same? This appears to be a flagrant violation of not only the statutory intent of Section 1401, Title 16 of the Pennsylvania Consolidated Statutes, but also the policies of County Council and the County Executive of Northampton County, as they relate to the prohibition against county employees “moonlighting” during work hours.

I am requesting that Northampton County Council, the Northampton County Solicitor’s Office, and the Commonwealth of Pennsylvania’s Attorney Discipline Board investigate this matter and take whatever action is necessary to vindicate the interests of the citizens of Northampton County. The actions and inactions of Mr. Houck are not appropriate and present unacceptable conflicts of interest to the citizens/taxpayers of Northampton County and to victims of crimes, who Mr. Houck is entrusted to protect.

In support of the concerns noted herein, I have enclosed the following exhibits:

1. A copy of 16 P.S. 1401;

2. A copy of Northampton Council Resolution No. 21-06;

Copies of eleven (11) docket sheets recent/active civil cases in which Mr. Pepper is representing civil litigants in Northampton County, while employed as the First Assistant;

4. The transcript of the Right to Know Law Hearing in which the District Attorney’s Office acknowledged that Mr. Houck received the Complaint involving Mr. Pepper’s alleged conflict and the fact that Mr. Houck refused to make that letter available to the public; and

5. The docket sheet of the summary appeal guilty plea noted herein.

Should you have any questions, you may contact me via email at [redacted]. Thank you for your kind assistance. I look forward to hearing from you.

Houck's Response

"This is a desperate attempt by a desperate man to impugn the reputation of a guy who has been working in this office since 1980," responded Houck. "He should at least have some facts." 

Houck's First Assistant DA, Richard Huntington Pepper, is a 1973 grad of The University of Pittsburgh School of Law.  According to the Pa. Disciplinary Board, he's never been sanctioned. 

Houck, as a full-time District Attorney, is statutorily barred from accepting compensation from any other source or engaging in the private practice of law. "The district attorney while in office, shall not derive any other income. ... [T]he district attorney shall not engage in any private practice ...." There's no allegation that Houck has violated this proscription.  But there's nothing in state law that prohibits full-time Assistant DAs from accepting compensation from other sources or practicing law in a part-time private capacity.

Except for those days when he was a beat cop on the streets of Philadelphia, Houck himself has always been a full-time prosecutor who worked in Bucks, Lehigh and Northampton County.  But he tells me that when he was in Bucks County, full-time assistant DAs were not only permitted, but encouraged to practice some civil law so long as there was no conflict of interest. This resulted in more well-rounded and experienced assistant DAs. 

Before he tapped Pepper as his First Assistant, Houck and Pepper discussed and agreed Pepper would continue to represent civil clients on a part-time basis. "I'm proud to have him," Houck said, noting that Pepper's typical work week is 50-60 hours. Moreover, in the event that Pepper is required to attend a hearing for a civil client during regular business hours, Houck notes that Pepper uses his vacation and personal time. 

As Baratta observes in his memorandum, a County Council resolution adopted in 2006 reclassified the First Assistant DA from part-time to full-time. But unlike the state statute that applies to District Attorneys, nothing in that resolution bars the full-time First Assistant from accepting compensation from other sources or practicing civil law on a part-time basis. If that was County Council's intention, it should have said so. 

In other matters, it has. In 2013, then Controller Steve Barron was taken to task when it was discovered (by this very blog) that he was a part-time adjunct professor of political science who conducted three classes on Mondays, Wednesdays and Fridays during regular business hours. He was in direct violation of the Home Rule Charter, which specifically provided that "[d]uring his term of office the County Controller shall devote full time to the office, and shall not actively engage in any other business or occupation," 

Unlike the then ban on outside employment by the County Controller (since dropped) or the DA, nothing prevents the First Assistant DA from part-time employment. 

Baratta goes on to complain that Pepper practices law out of the office of a prominent criminal defense lawyer, which gives incoming clients the impression that they have an "in." Moreover, Pepper signs off on all plea agreements involving that lawyer.

Not so, says Houck. He noted that Pepper is a tenant, has no sign and has no involvement in the approval of plea agreements involving his landlord. 

Finally, Baratta alleges or implies that Pepper represented a criminal defendant accused of harassment at the magisterial level. But his own attachment makes abundantly clear that Pepper had no involvement at all in the criminal matter. Pepper did represent this defendant in a civil matter, but once he learned that there was a criminal case, he withdrew completely. The defendant ultimately entered a guilty plea. "Where's the conflict?" asks Houck. 

"Instead of taking information and distorting it, maybe [Baratta] should check his facts first," said Houck. "This is so very sad and reeks of political ambition. Had he believed one sentence of what he wrote, or had one sentence been true, he would have been in violation of his judicial ethics by not reporting it when he sat." 

Blogger's Observation:  The state statute banning full-time DAs from engaging in private practice or accepting compensation from any other source is very clear. It expressly rules out any form of outside employment. The same is true of the former Home Rule Charter ban on any outside employment by the Controller. But it's ridiculous to assert that a resolution establishing a full-time county position necessarily rules out any part-time employment elsewhere. If that were so, a large plurality of county workers who have second jobs to help make ends meet would have to quit their part-time positions. County clerks would have to give up their jobs at Walmart and Target. 

Baratta's request for an "investigation" is something he could have done when he was still perched in the judicial heavens. His failure to do so tells me this is pure politics.  This ham-handed approach sounds exactly like something coming from the John Morganelli playbook.  As a judge, Morganelli must stay out of politics. But it's obvious he and Baratta have been laying the groundwork for Baratta to run for DA for some time.

They must have been doing it part time.  

Morganelli was also behind the push to Nuria DiLuzio to run against Houck. We all know how that ended.