PAX Centurion - Spring 2019

www.bppa.org PAX CENTURION • Spring 2019 • Page 41 Attention To all members of the Boston Police Relief Association – Active Duty or Retired If you need to change your beneficiary or you are not sure of who your beneficiary is you can contact the relief office at 617-364- 9565. If you leave a message your call will be returned and if necessary the paperwork will be sent out to you. Thank you. Joseph Sullivan, Clerk, Boston Police Relief Association What can and can’t (or probably won’t) get your pension forfeited Legal Notes: Nick Pollard, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association L ast month, the Supreme Judicial Court issued an important decision interpreting a statute that governs when a public sector worker can have his/her pension stripped. The pension forfeiture law, G.L. c. 32, § 15, enumerates the circumstances under which a public sector worker may have his/her pension taken away upon final conviction of a criminal offense. Several categories of criminal convictions trigger this law, these are 1) criminal offenses involving the funds or property of a government unit/system (i.e. embezzling public funds, or destroying/stealing government property), 2) violations of the state ethics and extortion laws, and 3) criminal offenses involving a violation of the laws applicable to a public employee’s office/position. The first two categories are relatively straight-forward, however the third category is more open-ended and vague. In particularly, it has been unclear as to what criminal convictions would not trigger the forfeiture law for police officers. In Essex Regional Retirement Board v. Swallow , two retirement boards argued that police officers have accepted a special position of trust and accordingly, should have their pension forfeited upon the conviction of any crime , as any such conviction would violate the public trust. This is the broadest possible interpretation of the forfeiture statute; fortunately, the Court rejected this reading. The Swallow case was actually two combined cases involving a former municipal police officer and former a state trooper. One officer plead guilty to assault and battery, discharge of a firearm within 500 feet of a building, assault with a dangerous weapon, improper storage of a firearm, and witness intimidation. Each of these charges were related to an off-duty incident during which he brandished his personal firearm and became violent with his wife. The officer was out on administrative paid leave at the time, and notably, the witness intimidation charge stemmed from the officer threatening his wife after she said she would testify against him as part of an investigation into an allegation of abuse; this abuse allegation was the reason for which he was put on administrative paid leave in the first place. The second officer plead guilty to a charge of using the internet to attempt to coerce a child under 18 to engage in sexual activity. As you may have guessed, the child under 18 was actually an FBI agent. The officer used his personal computer to communicate with the “child” and never did so while he was on duty. In both cases, the officers’ respective retirement boards issued decisions stripping the respective officers of their pension pursuant to G.L. c. 32, § 15, specifically the third category mentioned above. The Court overturned the decision and reinstated the officers’ pensions. In doing so, the Court rejected the retirement boards’ argument that all crimes committed by police officers trigger the forfeiture statute. Specifically, the Court ruled that the forfeiture law requires a “direct link between the criminal offense and the member’s office or position, either factual or legal.” This means that in order for a criminal conviction (or guilty plea) to trigger the pension forfeiture law, the crime must be a violation of a law directly relating to the public position of the individual or there must be some direct factual connection linking the crime itself to the public position. Thus, if, the officer in the Swallow case used his work computer to attempt to entice the minor he believed he was communicating with, it is likely that his pension would have been forfeited. Similarly, if the other officer had used his duty weapon to threaten his wife, the result likely would have been different. Finally, the Court rejected the State Board of Retirement’s argument that crimes that also violate department rules and regulations trigger the forfeiture statute. It held instead that department rules and codes of conduct were not what the legislature had in mind when it said that violations of “laws” applicable to the office or position of the public employee trigger pension forfeiture. This too is significant for police as effectively every crime one could commit could be read to also violate a department policy or code of conduct. Beyond the most obvious advice to give in light of this ruling – do not violate criminal laws – it is advisable for any police officer convicted of a crime to take into account 1) the specific criminal statute s/he has been convicted under, and 2) the nature of the crime, especially whether or not there is any factual connection between the officer’s position and the crime itself. If the crime involved violating a law governing the conduct of a police officer or was factually connected to that officer’s job, the forfeiture statute will almost certainly be triggered. Practically speaking, if you’ve been convicted of or plead guilty to a crime, your retirement board is likely to move to forfeit your pension, but in light of the Swallow case, there is now a roadmap for fighting to get it back.