Cases against janitor spark ethics concerns _lowres

Advocate staff photo by SCOTT THRELKELD -- Harry Pastuszek Jr., attorney for the St. Tammany Parish School Board.

Five years ago, the St. Tammany Parish District Attorney’s Office prosecuted a school janitor for raping one boy and molesting another at Abney Elementary School, securing a conviction that sent Dino Schwertz to the Louisiana State Penitentiary at Angola for life with an additional 20 years tacked on — the kind of tough sentence for heinous crimes that the office is proud to boast about.

But while the criminal case is history, a handful of civil suits it spawned continue. And this time, a lawyer on District Attorney Walter Reed’s staff — Harry Pastuszek — is acting on behalf of the defense: the St. Tammany Parish School Board and its insurance company.

Ethics experts see Pastuszek’s involvement as a clear conflict of interest, one that should have resulted in a recusal — either of the DA’s Office from the criminal case, or of the assistant DA’s law firm from the civil cases that arose from the crimes.

Bennett Gershman, a law professor at Pace University in New York, said the failure to recuse is an obvious ethical violation.

“This is a clear case for an investigation by the appropriate disciplinary body and, in my opinion, appropriate punishment,” Gershman said, adding that the conflict also raises questions about the validity of the criminal conviction.

Neither Pastuszek nor Reed responded to requests for interviews.

Pastuszek’s private law firm has provided legal counsel to the School Board for years, an arrangement made through the District Attorney’s Office that has paid off handsomely for the assistant district attorney. He gets $150 an hour for the work he does for the School Board, and his firm bills $70 an hour for administrative, secretarial and paralegal time. That brought in more than half a million dollars to Pastuszek’s firm last year alone.

Pastuszek also is drawing more than $147,000 a year in a pension from the District Attorneys Retirement System of Louisiana, funded in part by the School Board. He retired on July 1, 2013, but a letter from Reed to School Board President Elizabeth Heintz said Pastuszek would continue to serve as an assistant district attorney, even though he had retired.

“Harry will continue to provide legal services to the board as he has done in the past,” Reed’s letter said. The only change, according to the letter, is that he no longer has to contribute to the retirement fund.

Pastuszek is receiving a modest salary from Reed’s office of about $25,000 a year.

Reed’s office informed the state Division of Administration that Pastuszek should stop receiving $45,000 in state supplemental pay he had been getting — pay that the state provides to most prosecutors.

Pastuszek does not appear to have any other duties as an assistant district attorney besides the School Board work. But his work for that body includes defending it against Schwertz’s alleged victims and their families.

When Schwertz was sentenced in 2009 for the crimes that took place in fall 2007, the parents of the boy who was raped made impassioned “victim impact” statements, according to coverage by The Times-Picayune.

“You have taken my son’s innocence away from him,” the boy’s father said. His mother said that parents tell their children they will be safe at school but Schwertz’s actions destroyed that trust. Her son no longer had the normal feelings of a little boy, she said. “He experiences the bad, nasty feelings of you raping him,” she told the defendant.

His parents filed suit in 22nd Judicial District Court against the School Board and its insurer in 2008. The case is under seal, but a judgment rendered by the 1st Circuit Court of Appeal in 2012 outlines their claims: that the school was negligent in hiring Schwertz, who had a criminal record, and in retaining him and failing to terminate him. The plaintiffs also claimed that the school was negligent in supervising the boy during bathroom breaks.

The district court had dismissed all the claims except negligent supervision of the child, but the appellate court restored them in a Nov. 14, 2012, judgment, which sent the case back to 22nd Judicial District Court.

At least four children came forward with accounts of being raped or molested by Schwertz. At least two others filed lawsuits.

Patrick Connick, who represents the family of the rape victim, declined to comment because the case is sealed.

Pete Adams, of the Louisiana District Attorney Association, declined to comment on the specific situation. But he described the use of assistant district attorneys to represent other government agencies as a common practice. When conflicts of interest arise, he said, the usual solution is for the district attorney to recuse his office from the criminal case or to have someone else represent the other agency.

Rafael Goyeneche, president of the Metropolitan Crime Commission, said the DA’s first responsibility in such a situation is to recognize the potential conflict. “It should be resolved in favor of protecting the integrity of the DA’s Office,’’ he said.

The potential for one side or the other’s interests to be compromised is what Gershman, the law professor, finds worrisome.

“The prosecutor might have secret information that he learned about in the criminal prosecution that he may want to cover up in the civil litigation,” Gershman said. “You might have information that the prosecutor learned from conversations with School Board people, etc., that the prosecutor can’t reveal because these are confidential communications with your client.’’

Added to that, he said, is the unseemliness of an assistant district attorney “racking up fees” while defending essentially the same actions that his office punished in another setting.

“It just shouldn’t happen this way,” he said. “You should have a line. You should have a wall. And if there is a potential for conflict, you’ve got to bring an independent lawyer into all this.’’

Follow Sara Pagones on Twitter, @spagonesadvocat.