Attorney Patrick Bryant Explains How Public Employees Can Lose a Pension That Is Vested

Massachusetts public pensions are funded almost entirely by contributions of employees. Unlike many pensions in the private sector and other public sectors, public employers generally do not match employee contributions. Pensions therefore represent an investment by employees to provide some financial security after retirement. Attorney Patrick Bryant, who recently help protect the pension of a police officer convicted of misdemeanors, explains how public employee pensions can be taken.

TL; DR - Don't commit bad or criminal acts. If facing termination or criminal charges, avoid convictions for crimes related to your job, that involve public resources, or that repudiate core obligations of public employment. Consult a pension lawyer prior to conclusion of any criminal process.

This posting is not whether public employees should be punished for certain bad acts. Pension forfeiture arises only when public employees have been punished, usually by loss of a job or their freedom, and who have accepted responsibility for criminal acts. The issue is whether the punishment must also include an investment built up by an employee over decades.

I. A Pension Becomes Property of the Public Employee After 10 Years.

In Massachusetts, public employees generally are entitled to a pension after 10 years of service. A pension becomes "vested" at that time, generally entitling the employee to a monthly payment after retirement at an appropriate age. But there are a few ways that a pension, even if vested, can be lost in part or in full. Please note that it is the applicable retirement board, rather than the public employer, makes the decision about whether circumstances require loss or reduction in an employee's pension.

II. "Moral Turpitude"

Public employees generally keep their pensions even if they are terminated. But employees terminated for conduct that amounts to "moral turpitude" can also lose their pension. General Laws Chapter 32, Section 10 (employee "is removed or discharged from his office or position without moral turpitude on his part").

The legislature did not define "moral turpitude" but the phrase, used in other contexts, has an established meaning. The established meaning of "moral turpitude" recently was explained in the case of Sullivan v. Brockton Ret. Board, decided by a magistrate of the Contributory Retirement Appeals Board (CRAB decides some appeals about whether pension must be forfeited):

"Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong ... so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of Moral turpitude. Among the tests to determine if a crime involves Moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind."

Examples of moral turpitude that resulted in pension forfeiture include: mental health worker's abuse and neglect of a mentally challenged adult; guilty plea for indecent assault and battery on a child under 14; teacher convicted of illegal drug possession; shoplifting; and stealing from prisoners.

"Moral turpitude" penalty applies only to an employee who is involuntarily terminated. In Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 655 (2010), the Massachusetts Appeals Court confirmed that an employee who resigns voluntarily remains entitled to a pension even if the resignation was "motivated by the member's moral turpitude or by the likelihood that his misconduct will lead to an involuntary discharge."

Please note: the moral turpitude penalty does not apply if the termination is reversed on appeal.

2. Criminal Misconduct.

A Massachusetts public employee can lose their pension, whether or not he or she is terminated, if the employee is convicted of "a criminal offense involving violation of the laws applicable to [the employee's] office or position.”. See General Laws Chapter 32, Section 15(4). Employees who lose a pension under this Section still a receive a refund of their retirement contributions. The refund is without any interest, thus allowing the applicable retirement board arguably to profit from the employee's misconduct.

For a conviction to fall under this provision, there must be a “direct link” between the criminal offense and the member's office or position. The Supreme Judicial Court decision in Garney v. Mass Teachers’ Retirement System, 469 Mass. 384 (2014) http://masscases.com/cases/sjc/469/469mass384.html decision, summarized three circumstances where the direct link standard is satisfied under Section 15(4) is permitted: 1) the criminal law violated expressly refers to public employment; 2) the criminal acts, regardless of the laws violated, factually involved use of public authority, resources or property; OR 3) the criminal acts involved a direct connection between the criminal offense and the employee’s official capacity, that amounts to a violation of a “fundamental precept” of the position.

Cases where a pension has been forfeited under this section include:

a) department head convicted of stealing town property and money; b) police officer convicted of assault and battery by means of dangerous weapon for shooting another officer with department-issued firearm; c) employee convicted of breaking into city hall to remove incriminating documents from own personnel file; d) court official, whose job requires upholding integrity of system, convicted of perjury; e) court official convicted of stealing from office also loses vested pension from previous public employment; f) police officer convicted of, while on duty, creating online civil service accounts for police officers under his command; g) police officer convicted of multiple felonies related to threats and intimidation of spouse.

At the same time, the courts have been careful to establish that not every criminal conviction, regardless of the reprehensible acts at issue, results in a loss of pension. For example, the following cases did not compel loss of pension: a) police officer's conviction of misdemeanors for off-duty scuffle with co-worker, also off-duty; b) fire fighter's sexual abuse of children, which did not occur on duty, with town property or resources; c) teacher's possession of child pornography, which was not acquired using public resources and did not involve children under his care; d) librarian's possession of child pornography, which was not acquired using public resources and did not involve children under his cares; e) custodian's sexual assault, which did not occur on public property.

For police officers, the risks of pension forfeiture can be great, especially if a retirement board misreads an infamous case involving a police officer who drunkenly shot a co-worker while both were off-duty. In Durkin v. Boston Ret. Bd, the appeals court ruled "Durkin engaged in the very type of criminal behavior he was required by law to prevent. This violation was directly related to his position as a police officer as it demonstrated a violation of the public's trust as well as a repudiation of his official duties. Clearly, at the heart of a police officer's role is the unwavering obligation to protect life...."

One could misread this case to provide that a police officer loses a pension after a conviction of any crime. After all, a police officer's job is to enforce the laws. The court itself was careful to caution against such an interpretation. The case involved a completely unjustified shooting of a fellow police officer with a department weapon. The convicted officer compounded the misdeed by failing to render any aide or assistance to his embattled colleague. He then pled guilty to an assault and battery with a dangerous weapon, a felony.

In Garney, the state's highest court suggested that Durkin was limited to a assault and battery involving a department-issued weapon. And the court said that breach of special trust by employees is not, in and of itself, sufficient to forfeit a vested pension. Recently Attorney Bryant argued successfully that a conviction for simple misdemeanors that occurred off-duty and without public resources did not satisfy concern a violation of law applicable to position under Section 15(4) or Durkin.

III. What To Do If Facing Termination or Criminal Charges

Massachusetts public employees may wish to consult with an attorney experienced in public retirement law in determining any retirement consequences of any proposed termination and criminal charges. Needless to say, the safest way to avoid this conundrum is to misuse public resources or authority and to avoid behavior that could result in a criminal conviction.