Massachusetts High Court Limits Certain Punishment of Public Employees for Off-Duty Behavior

An employee's off-duty conduct generally is not a basis for work-related punishment - at least in workplaces protected by "just cause" under a union contract. Public employees frequently face a greater likelihood that off-duty misconduct will be used to punish them, even with union protection. The Supreme Judicial Court, in two cases issued last week, limited the penalties suffered by public employees who committed reprehensible criminal acts while off-duty.

In City of Springfield v. Civil Service Commission, the SJC ruled that an indictment for filing false tax returns is not a legitimate basis to suspend a civil service employee without pay. Public employers can suspend employees without pay for "misconduct in office" under Chapter 268a, Section 25. The SJC affirmed that certain public employees, such as police and teachers, can be held to higher standards, but that this did not extend to carpenters, the employee's permanent civil service position. As such, an indictment for filing false tax returns was unrelated to the position of carpenter, and could not be a basis for an unpaid suspension. The employee's victory in this case was short-lived as the SJC agreed that the City could terminate him upon his conviction for filing false tax returns.

The second case involved pension penalties for off-duty conduct. In Garney v. Mass Teachers Retirement System, the SJC ruled that a former public employee did not lose his pension merely because he engaged in thoroughly reprehensible and criminal behavior off duty. The teacher in this case committed despicable acts of purchasing and possessing child pornography. The teacher's criminal acts lead to his effective termination (he resigned before being terminated), conviction and imprisonment. There is no dispute that he could be terminated for this off-duty behavior.

At the same time, the SJC ruled that such behavior did not meet the criteria of job-related conviction set forth by the legislature that forfeits an employee's pension. The former employee's horrendous behavior did not involve children or students under his professional care, although it did involve students generally. The Court wrote, "Private possession of child pornography by a secondary school teacher does not directly contravene this central function where there is no indication that this possession compromised the safety, welfare, or learning of the children whom he was tasked with teaching or impeded his ability to provide adequate educational lessons to his students. As reprehensible as Garney's crimes may be, the entirely private nature of his conduct does not call into question the effectiveness of the educational system of the Commonwealth."

The SJC agreed that Garney undeniably violated the "special public trust" he held as a teacher, but disagreed with he must forfeit his pension as a result. The Court distinguished Garney's situation from past SJC cases involving court officials who lost their pensions following convictions for perjury and larceny - actions inconsistent with the fundamental tenets of their positions.