Appeals Court Clarifies Pension Consequences For Public Safety Employee Criminal Misconduct

Public employees found to have engaged in criminal misconduct do not merely face the loss of their job (and health insurance), they also face the prospect of losing a pension that they have contributed to for years, if not decades. State law, specifically Chapter 32, Section 15(4) compels retirement boards to forfeit the allowance of an employee convicted "of a criminal offense involving violation of the laws applicable to his office or position...." (This provision, incidentally, is only one of several that result in loss or reduction of a pension/retirement allowance). The law obviously is designed to discourage public employees
from engaging in criminal activity.

The ambiguity in the phrase "laws applicable to his office or position" has led to confusion and, hence, considerable litigation over the years. Recently, the courts ruled that a criminal conviction, in order to result in loss of retirement allowance under Section 15(4), must have a factual or a legal link to the job. A factual link usually means that the criminal conduct occurred on duty, on the employer's property and/or through use of employer resources (municipal vehicles or uniforms). A legal link is established when the criminal conduct is "contrary to a central function of the position as articulated in applicable laws."

The law has resulted in a patchwork of decisions over the years. For instance, convictions based upon off-duty violations of child sexual assault or child pornography laws were found not to establish legal or factual links for teachers, librarians, or fire fighters. Meanwhile, a police officer's conviction for off-duty discharge of a police-issued gun against a fellow officer established factual and legal connections. As did a DPW employee's crimes of theft of City money, and breaking and entering City Hall to clean up his personnel file. Former House Speaker Finneran's conviction for obstruction of justice has a factual link because he falsely testified about a redistricting plan he oversaw in his legislative capacity. Even false statements about entirely off-duty conduct can result in pension forfeiture. The perjury and obstruction of justice committed by a Bulger brother about his knowledge of Whitey's safe deposit box had a legal, but not factual, link to his job as a clerk-magistrate, which required him to uphold a fair, honest judicial process.

Against the backdrop of these cases comes two recent Appeals Court cases involving public employees with criminal convictions. In Dell'Isola v. State Board of Retirement, the Appeals Court found a direct factual link between a correctional officer's job and his conviction for cocaine possession. There, the correctional officer acquired the cocaine with the assistance of an inmate, even if he did not actually purchase drugs from or through the inmate.

Another case issued that same day, State Board of Retirement v. O'Hare, the Appeals Court again demonstrated that police officers frequently are subject to different standards than other public employees. There, the Appeals Court ruled that a state trooper's conviction stemming from off-duty solicitation of a minor for sex was legally connected to his job as a police supervisor. The court wrote, "O'Hare's egregious actions are in violation of the fundamental tenets of his role as a State police officer, where the protection of the vulnerable, including children, is at the heart of a police officer's role, and this repudiation of his official duties."

Note, the Court acknowledged that if another public safety employee, such as a fire fighter, committed the crime, the other employee would not lose their pension. And while the Court paid lip service to the idea that a police officer does not automatically lose a pension merely for being convicted - police officers, after all, are obligated to enforce all laws -- the decision could be read broadly to expand the types of crimes that result in pension forfeiture for police officers.

Convicted public employees forced to forfeit their retirement allowance have one more option to protect their investment: they can challenge the loss as an excessive fine in violation of the 8th Amendment of the U.S. Bill of Rights. The Supreme Judicial Court ruled that it was unconstitutional to forfeit the pension of a veteran police officer convicted of setting up unauthorized civil service computer accounts for co-workers. The Court determined that the loss of a pension (valued at nearly $700,000), for relatively minor crimes that carry minimal punishment and involved actions from which the officer did not profit, was unconstitutionally "excessive." It remains to be scene whether the loss of retirement allowance is an excessive fine in the two recent cases.