Girl Gains in Bid to Tap Into Pension of Her Molester

A 16-year-old San Diego girl seeking to pay her therapy bills by tapping the monthly pension of a retired state worker convicted of molesting her won an initial court victory Tuesday.

After a hearing in his chambers, San Diego Superior Court Judge Michael I. Greer issued temporary restraining orders Tuesday that froze the pension paid to convicted molester Colby W. Flaherty, 67, by the state Public Employees Retirement System.

Greer ordered another hearing for Sept. 25 in the case, which appears to be the first pitting the right to restitution provided victims by the California Constitution against a state law that says public retirement benefits are exempt from collection by others.

‘Unequivocal’ Restitution Right

Although the 1982 constitutional amendment dubbed the “Victim’s Bill of Rights” gives crime victims an “unequivocal” restitution right, it does not say how victims should go about actually securing that money, said William A. Fogel, the San Diego attorney representing the 16-year-old girl.

“The problem that needs to be addressed is that the state of California says victims have the right to restitution. And (victims) are supposed to have a network of laws that gives the right to restitution,” Fogel said.

“But the laws don’t do that as they’re applied,” he said. “We think criminal victims who go through the process and get a judgment should have more rights than collection agencies.”

Flaherty, a retired California Department of Transportation supervisor who lived in Loma Portal, was sentenced in December to 12 years in state prison for molesting the girl. He had pleaded guilty in October to oral copulation with a girl under 14 and to six counts of employing the girl to perform lewd acts that were photographed.

Flaherty was arrested after police were tipped that he had been molesting the girl, a neighbor, for two years. He first lured her into his house with promises of candy, police said.

At Flaherty’s sentencing, San Diego Superior Court Judge Jesus Rodriguez, in addition to imposing the maximum prison term, also ordered Flaherty to pay the girl $10,000 restitution. That money was needed for the girl’s medical and therapy bills, Fogel said.

The only significant asset with which Flaherty could make that restitution--since he was sent to the medium-security state prison at Ione--was his state pension, Fogel said.

The gross amount of Flaherty’s pension is $364.20 a month, said Steven Phillips, chief of the post-retirement services division at PERS in Sacramento. Flaherty retired after at least 15 years with Caltrans, Fogel said.

Automatically Exempt

The roadblock to tapping into Flaherty’s money is a state law saying that public retirement benefits are automatically exempt from the execution of civil judgments, Fogel said.

In legal papers Fogel filed Tuesday before the hearing, he asked Greer to decide which is more important, the California Constitution or the state statute.

Victims’ claims certainly had priority over the “competing claims . . . by perpetrators of . . . crimes,” Fogel said in those papers.

Greer issued two temporary restraining orders. The first blocked Flaherty from transferring his rights to the pension to someone else. The second blocked the state from disbursing any more checks to Flaherty, pending further hearings.

At the Sept. 25 hearing, Greer will consider whether to continue those two orders pending trial. Fogel said the girl will seek an order at trial compelling the state to funnel the pension funds to her.