Roberts dominates Hercik hearing
HARRISBURG – Testimony from State Rep. Larry Roberts (D-South Union Twp.) dominated Thursday’s action before a hearing examiner for the state Board of Real Estate Appraisers, where Fayette County chief assessor James A. Hercik, CPE, is defending himself against 22 charges that could strip him of his appraiser’s license. John F. Alcorn, a chief hearing officer for the Department of State, presided over the day-long hearing, assisted by real estate board members Robert F. McRae and William P. Wentz Jr. However, Alcorn will ultimately rule on whether Hercik is sanctioned for any of the allegations instigated by Roberts and five other county property owners.
Two attorneys for the Department of State, Tracy McCurdy and Beth Michlovitz, are prosecuting the case against Hercik, which has been combined with one against county assessor Candace McCahill, who faces three charges related to her assessment work on Roberts’ South Union Township property in 1996.
Hercik’s attorney Bob Hoffman said that the McCahill factor amounted to a “very small part” of the case, and noted that her involvement is because she “drew the short straw one day” and was sent to assess Roberts’ then-vacant lot on Farmview Drive.
During opening comments, Michlovitz asked Alcorn to ignore the history of assessment problems in Fayette County and to focus on the fact that during his tenure as chief assessor, Hercik “utilized illegal and improper methodologies” to derive assessments – including ones that he developed.
Fayette County was and currently is a 1958 base year county, meaning that all properties should have been assessed using the now-infamous 1958 rate book. Michlovitz said that it was the Commonwealth’s position that the county’s failed 1985-86 reassessment was illegally implemented, and that the county had previously changed its assessment method in 1971. That move, too, would be considered illegal.
“The Commonwealth acknowledges that there were problems with the system,” said Michlovitz.
In his opening remarks, Hoffman said it was critically important to take a historical view of the county’s assessment problem and how it evolved over time into a system so convoluted that no one really understood it.
“Fayette County went awry or astray in 1971 or 72, at a time when Jim Hercik was in high school,” said Hoffman, who added that over the ensuing decades “people really believed that they were doing it the right way” because they didn’t think their bosses would violate the law.
Hoffman said that in reality, Hercik was a key figure in uncovering the problem and convincing the county commissioners to finally solve it through the countywide reassessment scheduled to go into effect in 2003.
Hoffman added that the only reason Hercik has to defend himself for doing the same thing as his predecessors is because a state law licensing assessors took effect during 1992 on his watch. Two of the three men who held the job before Hercik – former state Sen. Eugene Porterfield and Dick Bitner – were deposed as part of the Commonwealth’s case. The third, current state Sen. Richard A. Kasunic, was not.
McCurdy said the Commonwealth’s case against Hercik centers on a “course of conduct issue,” a point that she and Michlovitz repeatedly drove home during Thursday’s hearing.
Roberts a state legislator since 1992 was the first witness to take the stand. He testified that he knew little about Fayette County’s assessment system until he purchased his residential lot in 1996 for $31,000 and began asking questions about how it was going to be assessed.
Roberts said it eventually dawned on him that all assessments should be done based on the 1958 rate book – and not by multiplying the current market value by a common level ratio (CLR) set by the State Tax Equalization Board, as was being done.
Roberts said that he made that point during a 1996 telephone conversation with Hercik. “He (Hercik) kept insisting that they use the CLR … and current market value (of the property),” said Roberts. “I told Mr. Hercik that he was breaking the law. He told me, ‘I don’t care. I do what the (county) commissioners tell me to do.'”
Much of the rest of Roberts’ testimony centered on a recitation of his well-publicized tax appeals in the 1996-97 period, including his request to see the 1958 rate book. Hercik found a copy, seeing it himself for the first time since he started working as an assessor in 1977, but the chapter on how to value land was missing.
Several times during the proceeding, hearing officer Alcorn told prosecutors he was not interested in hearing about Roberts’ state of mind or motivation at certain times, as those were not relevant to developing a factual case against Hercik.
After Roberts began talking about how he had helped others who had approached him with assessment concerns, Hoffman said, “Respectfully, this is a great representative. He helps people when they want it. But what does that have to do with my client (Hercik)?”
When Michlovitz asked Roberts how the assessment process affected his life, Roberts said, “Probably … well, there’s no proof of this, but I’m divorced.” He also said that he had been politically damaged by bad publicity.
“I’ve been in the newspapers for four years — ‘Mr. Roberts doesn’t want to pay his taxes.’ I had to work extra hard to get re-elected because of bad publicity,” said Roberts. “I’m divorced” because of this.’
Roberts also said that during the appeal hearing on his newly constructed house, Hercik ignored his request to stay away from current market value and allowed the county commissioners then serving as the Tax Assessment Appeals Board to “beat up” on him.
Hoffman said that Roberts was overstating Hercik’s power. He drew an analogy between the tax appeals board and the hearing examiner, with both being in charge of their respective domains. “Jim Hercik is not in a position to shut them (the commissioners) up any more than I can tell Judge Alcorn to quit asking questions,” said Hoffman.
However, Roberts stated his belief that Hercik played a big role in deciding assessments in meetings held behind closed doors. “I think it went on all the time, sir,” said Roberts.
Hoffman said that it was county practice for “years and years and years and years” for the chief assessor to make a recommendation to the appeals board.
Referring to one letter authored by Roberts and sent to Hercik, Hoffman said that Roberts had quoted the wrong section of state law when reminding Hercik that property record cards are to show “in detail … the basis on which such assessments were made.” Hoffman said that particular wording comes from a section that’s applicable to a first-class county — in this case Philadelphia — and not to a fourth-class county like Fayette.
“Have you come to understand that the law you were quoting there isn’t applicable in Fayette County?” asked Hoffman.
Under cross-examination by Hoffman, Roberts said that a lavish description of his house used to promote a Christmas tour hosted by the county Crime Victims Center was inaccurate. Roberts said the house had no handmade brick or individually cast ballisters. He also said that it had a “hand-crafted mantle” only if one considers a mantle built by vocational education students to be hand-crafted.
The only gold gilding in his house is found on the house numbers on its exterior, said Roberts, who added, “Portugese tile doesn’t mean it was made in Portugal.” When Hoffman reminded Roberts that all of those descriptions and more were on a brochure touting the tour, Roberts said, “My (ex-) wife (Carol) wrote that. By the way, I do have a nice house.”
But when Hoffman asked if the brochure was an accurate portrayal of his house, Roberts said, “No, it is not … I was really upset about it … The newspapers are still beating me up for my gold faucets. They can’t tell the difference between gold and brass.”
The only other person to testify Thursday was Roger Mitchell, who worked as an assessor in Fayette County from 1994 through 1999. Mitchell said that there were “a lot of questions” raised within the office about the tax system but they remained mostly questions.
“Uniformity in there was maintained as good as it could be, given the system,” said Mitchell, called as a prosecution witness. “You really couldn’t deviate from the system that we had.”
Mitchell also said that he did indeed ask about deviating from the system but got no clear response. He also said that although the individual assessors were required to work up the packets for appeals, Hercik would from “time to time” substitute properties to be used for comparables during appeal hearings.
The hearing resumes at 9 a.m. today, with Roberts’ hired appraiser Mark Ackerman scheduled to take the stand. Hercik is slated to testify today as well.