Jury Deliberates in Councilman’s Trial

The jury in the trial of Long Beach Councilman Michael Fagen started deliberations Tuesday.

Defense attorney Marc Gann and prosecutor Marshall Trager each made hour-long summations to conclude the two weeklong trial in which Fagen faces charges that he illegally collected more than $15,000 in unemployment benefits while he served on the council from January to September 2010.

During deliberations Tuesday afternoon, the jurors made four requests, according to Fagen, who spoke to Patch outside Judge Mary Berkowitz’s courtroom at Nassau County Supreme Court in Mineola.

The jurors asked for copies of a City Council resolution from Aug. 3, 2010 that designated a standard work week for Fagen for pension purposes, Fagen’s statement to the Department of Labor on Sept. 23, 2010, and an application for Fagen that the city submitted to the state retirement system that designated him as a part-time employee. The jurors also asked for a clarification on the definition of “intent.”

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During his summation, Gann often reiterated that Fagen’s case is based on intent. “This is not a criminal case,” he said. “He did not have the intent to steal.”

While Gann maintained that Fagen was only a part-time city employee who was eligible to collect unemployment benefits, Trager said the councilman worked every day, at least four days for each week, which made him ineligible for the unemployment benefits that he applied for and accepted.

Fagen is charged with third-degree grand larceny, petit larceny and 38 counts of offering a false instrument for filing, and he faces up to seven years in prison, if convicted.

One of the main issues in the case that would cause reasonable doubt, Gann told the jury, is that Fagen wasn’t enrolled in the state retirement system, as the city had claimed he was.  

Gann claimed that Fagen, a Democrat, was set up by his Republican adversaries, who held a majority on the council in 2010, to keep a journal of his activities as councilman from January to April 2010, and they used it to portrait him as a full-time employee who was illegally collecting unemployment checks  to the Department of Labor.

Sandra Clarson, the city’s former comptroller, told Fagen to keep a journal, include in it everything from his attendance at twice-monthly council meetings to his brief emails to constituents, and regard it all as workdays, because the diary counts toward his pension, Gann said. But Fagen maintains he never applied for the retirement system, and that the city
submitted the application unbeknownst to him.

But Trager said Fagen was eligible or and did join the retirement system, a criterion of which is to keep a diary of activities. “He made the dairy because he wanted to join the retirement system,” Trager told the jury. He claimed that there was “nothing nefarious” in what Clarson asked Fagen to do.

Gann said City Manager Charles Theofan, who reported the councilman to the Department of Labor, wanted to set up Fagen because he was going to expose the administration’s “financial improprieties.” But Trager said that Fagen and Theofan merely “butted heads” over “disagreements,” and that Fagen had only unsubstantiated allegations against the administration.

The other issue Gann said caused reasonable doubt is the change in language to the labor department’s handbook, which states that resident must report all the work they perform “in connection with public office,” a change that was added in September 2010, the period after Fagen is accused of illegally collecting benefits. Fagen started to receive unemployment benefits in September 2009.

But Trager essentially countered that the language was added for clarity on an existing rule. He said Fagen claimed he never got an unemployment handbook, while everyone enrolled in the system receives one, and that he was unable to access the handbook online. “As to the information that tells him you’re not entitled to the [unemployment] money, that he can’t find,” the prosecutor added with disbelief.

The charge of petit larceny against Fagen rests on when he started work with a startup company, Willow Advisors, in September 2010. Here, Fagen demonstrated his intent to defraud the unemployment system, Trager said.

Trager displayed an attendance sheet that showed Fagen started work for Willow on Sept. 7, 2010, before his unemployment benefits were due to expire, and he received a $2,500 paycheck from Willow on Sept. 15.  

“You can rely on those records,” Trager told the jury.

But Gann maintains that Fagen didn’t actually start to work for Willow until Sept. 12, after his unemployment had expired, and he was paid in advance for what was a temporary job.

During his summation, Gann called it a “travesty” and “frustrating” that the prosecution didn’t call Theofan and Clarson to testify. “They didn’t bring the people that he [Fagen] dealt with directly,” he said.

Trager opened his summation by stating that this was mainly a “paperwork case,” and was not about who he didn’t call to testify. “It’s all about who was here and what was present,” he said.

The jury is expected to continue deliberations Wednesday.

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