Massachusetts Appeals Court Reverses Retirement Forfeiture of Child Molester: Retirement Bd. of Maynard v. Tyler, 83 Mass. App. Ct. 109 (2013)
Not all criminal misconduct by a member of a government retirement system will result in a forfeiture of the member’s pension. Rather, forfeiture depends on a showing that the member was convicted “of a criminal offense involving violation of the laws applicable to his office or position . . ..” M.G.L. c. 32, § 15(4) (emphasis added). Massachusetts courts have consistently interpreted this provision narrowly. State Bd. of Retirement v. Bulger, 446 Mass. 169, 174-75 (2006). In Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1 (1996), the Court announced that, in order to invoke the forfeiture provision of Section 15(4), there must be a showing of a nexus or “direct link” between the crime(s) committed and the nature of the member’s particular office or position. Id., at 5. “[T]he General Court did not intend pension forfeiture to follow as a sequalae of any and all criminal convictions. Only those violations related to the member’s official capacity were targeted.” Id.
Recently, the Massachusetts Appeals Court gave the pension forfeiture statute its requisite “narrow” interpretation, but in a split decision. Retirement Bd. of Maynard v. Tyler involved a Maynard firefighter, Anthony Tyler, who resigned and applied for retirement benefits on the same day of his indictment on charges arising out the sexual molestation of a neighbor’s (a fellow firefighter’s) minor child. Eventually, Tyler pleaded guilty to three counts of indecent assault and battery on a person fourteen years or older, and was sentenced to three years and a day in prison. After a second sexual abuse victim came forward (the relative of another firefighter), Tyler again pleaded guilty and another three year and a day prison sentence was added to the one already being served.
Because the molestations were committed on a son and a relative of fellow firefighters, and because firefighters are duty bound to protect the public, the Maynard Retirement Board concluded that there was a direct link between Tyler’s offenses and his position. Accordingly, it suspended Tyler’s pension benefits. A Superior Court judge subsequently agreed with the Board and upheld the pension forfeiture pursuant to M.G.L. c. 32, § 15(4).
But the Appeals Court reversed. Writing for the majority, Judge Kantrowitz felt “constrained” to rule that, although Tyler became acquainted with his victims through other firefighters, his offenses were nonetheless “personal in nature” and occurred outside the firehouse while the perpetrator was off duty. Further, there was “no evidence that Tyler used his position, uniform, or equipment for the purposes of his indecent acts, nor were the acts committed on department property.” To the Board’s criticism that, as a firefighter, Tyler was obligated to protect the public, not harm its individual members, Judge Kantrowitz rejected such an interpretation of the statute as too broad; if adopted, it would “engulf nearly every public official, especially police officers and firefighters, convicted of any crime.” Quite simply, the link between one’s actions and his official position must be more “direct.” The Appeals Court, therefore, reversed the decision below and ordered Tyler’s pension restored.
In a compelling dissent, Judge Graham admonished the majority by pointing out that certain forms of employment “carry a position of trust so peculiar to the office and so beyond that imposed by all public service that conduct consistent with this special trust is an obligation of the employment.” Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349 (1983). Firefighters, he insisted, are in such a position. Specifically, firefighters and EMTs are “mandated reporters” required to report incidents of suspected neglect or abuse of a child to the Department of Children and Families. M.G.L. c. 119, § 51A. Here, Tyler was sentenced to prison for sexually abusing children, “the very type of criminal behavior he was required by law to report.” As a result, his convictions amply demonstrated “a violation of the public trust as well as a repudiation of his official duties [as a firefighter.]” Under such circumstances, Judge Graham was more than satisfied that Tyler’s actions and his office or position were directly linked.
The Maynard case highlights one of the most difficult decisions a retirement board is ever called upon to make – whether to disqualify a member from receiving his or her retirement allowance because of wrongdoing. Yet, even when confronted with criminal misconduct of the most egregious and harmful nature, boards are still constrained in enforcing the forfeiture provisions of M.G.L. c. 32, § 15(4). The Maynard case, however, is not necessarily over. On February 6, 2013, the Retirement Board of Maynard filed an application for further appellate review to the Supreme Judicial Court. On February 19, 2013, counsel for Tyler filed an opposition to that application. As of the date of publication of this Newsletter, the SJC had not yet ruled on the Board’s application. If further appellate review is granted, retirement boards may soon receive further guidance from the SJC on the required crime/position nexus.
Published in Developments in Municipal Law Spring 2013 Newsletter.