Jun 16, 2021 5 min read

The district attorney in Washington County is blasting the state auditor general’s recent report on the county’s community service program for criminal defendants while calling one part of the audit “disingenuous” and questioning its overall accuracy.

Gene Vittone said he’s spent several days reviewing Auditor General Timothy DeFoor’s audit released Friday that claimed $1.56 million in potential revenue was lost in recent years due to the county allowing a large number of people to perform community service in lieu of paying fines and court costs.

Vittone questioned how DeFoor’s audit reached some of its findings and called the assertion that the county’s process is flawed a “legally incorrect” conclusion. Instead, he praised the Community Services and Furlough Into Service programs that allow nonviolent offenders housed at the Washington County jail and other criminal defendants to perform a wide variety of service projects to pay off their fines and other costs.

“The many thousands of hours of work performed each year by the FITS/Community Service Programs help many county organizations,” Vittone said in a written statement. “It would be unfortunate for the FITS/community work service program to suffer solely due an incorrect legal interpretation reached by Auditor General DeFoor and a spurious financial extrapolation based upon that incorrect legal conclusion.”

Reached for further comment after sending his statement Tuesday afternoon, Vittone said he took particular exception with page 21 of the audit where the word “must” was inserted into a sentence discussing the law in which a judge “may conduct a hearing” in order to determine if a defendant can afford the financial penalties if they default on the payments.

“I think it’s disingenuous to use the word ‘must’ instead of ‘may.’ Why would you change the statute?” Vittone said during a subsequent telephone interview.

In a response to an emailed question about why there was a discrepancy in the wording of the statute in the audit, auditor general spokesman Gary Miller said “the word ‘must’ came from a legal citation of the statute originating with the Administrative Office of Pennsylvania Courts.”

Miller added that there is no clear criteria on who is eligible for the community service program.

“Beyond an alarming lack of oversight over the community service being done, serious questions remain about how the county is managing its alternative sentencing program,” Miller said.

During Friday’s press conference in Pittsburgh to release the results of his findings, DeFoor was adamant that defendants must undergo a hearing – and in some cases, two hearings – before a judge to permit them to be admitted into the community service program. But Vittone noted that defendants may petition the court for the community service option through written documents that explain their financial background, or during a sentencing hearing. Oftentimes, Vittone said, people who are admitted into the community service program are using public defenders, which is another indicator of their inability to pay all of their fines and court costs.

Vittone, who has served as the county’s prosecutor since 2012, said the community service program is an important component in the criminal justice system, and thinks it has helped many defendants get their lives back on track while helping nonprofits, churches and local governments save money.

Shortly after Vittone took office, the Washington County Court of Common Pleas instituted Local Rule of Criminal Procedure 711 that specifically permits defendants to perform community service as a punishment option, although it cannot be used to repay restitution to victims. He noted that a state Supreme Court decision this March held that the only time a hearing is required is when a defendant faces possible jail time for failure to make proper payments.

“This local rule was published in the Pennsylvania Bulletin and adopted without objection,” Vittone said in his written statement. “Accordingly, it has the force of law and is constitutionally sound. At no place in the Local Rule is there a requirement that a judge have a hearing (let alone two hearings) prior to determining that an individual may perform community work service.”

Vittone also praised the specialized courts run by President Judge John Disalle, which include Veterans Court, DUI Court, Treatment Court and Mental Health Court.

“One of the key goals of our criminal justice system is to rehabilitate non-violent offenders,” Vittone said in his statement. “Many offenders have mental health and/or substance abuse issues. When we formed the Drug Treatment Court in 2005, a key part of that program was the requirement that participants complete many hours of community work service. This was done in order to permit participants who were working to resolve their substance abuse issues the ability to work off many years of prior criminal case court costs. In this way, participants are given a fresh start. Since then, Washington County has created many specialty courts which serve defendants with different needs.”

Vittone questioned how the auditor general came upon his findings, suggesting the audit “extrapolated a small sample of (28) reviewed cases” from 2016 to 2019 and incorrectly concluded the loss of potential revenue to the county and state was $1.56 million during that four-year period.

The district attorney also thinks last month’s decision by DiSalle and the Washington County commissioners to move the collections staff from under the supervision of Clerk of Courts Brenda Davis to the Adult Probation Office will help streamline the system since it will “provide greater insight to collection employees on a defendant’s ability to pay costs and fees.”

“This is due to a supervising probation officer’s knowledge of a defendant’s employment, family, lifestyle and ability to pay,” Vittone said. “This change dramatically lessens the potential of abuse, as the Clerk of Courts Office would not possess this first-hand information about the defendant. The decision to transition these employees to the probation office is expressly permitted by statute and is consistent with the long established practice in Washington County.”