West Virginia Record

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Graham sued by ex-employee over retirement plan

By Chris Dickerson | Apr 14, 2006

Bob Graham, right.

WINFIELD – The embattled director of the Wyoming County Council on Aging has been sued for not allowing a former employee to take part in a retirement plan he administered.

Bob Graham was listed as a defendant in a lawsuit filed March 31 in Putnam Circuit Court by Pamela B. Miller. Also listed as defendants were the Council on Aging, All Care Home and Community Services and The Peoples Bank of Mullens.

Miller's suit is the first filed against Graham, who is in the midst of several state and federal investigations, by one of his employees.

Miller, a nurse from Charleston, worked under Graham from January 1995 to December 2004, providing in-home healthcare services to senior citizens and disabled patients in Kanawha and Putnam counties. She now works at another home health-care agency along with several of her former co-workers who also left the Council on Aging.

Miller says Graham, in his capacity as executive director and CEO of Council on Aging and All Care, is the plan administrator of a Simplified Employee Pension Individual Retirement Plan.

The suit, filed by Nitro attorney Harvey D. Peyton, says the SEPIRA Plan was established in 1985 to allow Council on Aging and All Care "to make contributions to individual retirement accounts established by their employees on a tax-deferred basis, in addition to amounts that might be withheld from employees' wages for such purposes."

The suit say Peoples Bank is the co-administrator of the plan and is custodian or trustee of the funds contributed to it.

Miller says she asked on several occasions about her eligibility to participate in the SEPIRA Plan only to be advised by Graham that she was not eligible and did not qualify for inclusion.

Miller contends that she was, indeed, eligible to participate in the plan. She claims that the defendants wrongly discriminated against her according to provisions of the United States Internal Revenue Code by failing to make contributions to the SEPIRA Plan in any year in which contributions were made for other eligible employees.

She claims Graham made all decisions regarding the operation of the plan, "including the decision to discriminate against the plaintiff by excluding her as a participant in that plan."

Miller goes on to claim the defendants, either jointly or severally, "carelessly and negligently misapplied the provisions of the subject SEPIRA Plan so as to unlawfully discriminate against the plaintiff and to deprive her of the terms, conditions and benefits of her employment by depriving her of the additional tax-deferred IRA plan contributions to which she was entitled as an eligible employee."

She also says the defendants deliberately, intentionally and fraudulently "misapplied the provisions of the subject simplified employee pension plan" to discriminate against her, saying Graham "diverted assets of Council on Aging and All Care that were available to make contributions to the subject SEPIRA Plan to other uses unrelated to employee benefits and, upon information and belief, unrelated to the mission, duties and functions of Council on Aging or All Care."

Graham's pay and benefits, which amounted to more than $450,000 in 2004, came to the attention of state and federal investigators almost two years ago.

In the suit, Miller says that if the conduct was deliberate, it "amounted to cheating (her) out of legitimate benefits of her employment and retaining her services without just and adequate compensation for a period of 10 years pursuant to such a scheme."

Based on that argument, Miller also seeks punitive damages to "punish and chastise them for this conduct."

Miller claims she has been deprived of contributions in an amount exceeding $36,368.40. She also says she has incurred significant costs and attorney fees in the prosecution of this action. She also says she is entitled to pre-judgment interest on the sum until retirement contributions she earned are paid on her behalf.

Last month, Kanawha County Circuit Judge Charlie King ruled that the Wyoming County Council on Aging has to stop paying Graham while he's on leave from his job to deal with his legal problems. King ordered the council to stop paying Graham until further notice.

Graham has been sued by the state and indicted by federal prosecutors on 21 counts of embezzlement and tax fraud.

In February, Graham requested that his board of directors at the Wyoming County senior program put him on paid leave so he could focus on his courtroom battles. The board agreed, and his paid leave began Feb. 8.

King already had ordered that Graham be barred from setting foot on senior center property and be denied access to facilities and finances he had control over as director of the center.

Graham also was ordered to return much of the senior center property that has been in his possession, including a $50,000 luxury vehicle he used as his personal car, company credit cards and an agency computer he kept in his home. Last month, King also ordered that he shut off his in-home cable and satellite services that were paid for by the agency.

Other perks Graham received while director of the senior center included free health insurance, personal use of an upstairs apartment in his Itmann senior center, agency-paid vacations and the big vacation and leave benefits.

Graham is scheduled to appear soon in federal court in Beckley. If convicted of the charges against him, he could be forced to return more than $400,000 and he faces fines of more than $5 million and up to 112 years in prison.

Putnam Circuit Judge O.C. "Hobby" Spaulding has been assigned to Miller's case.

Putnam Circuit Court case number: 06-C-105

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