Select Cases and Current Legal Issues. MACRS Fall Conference October 16,2012

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1 Select Cases and Current Legal Issues MACRS Fall Conference October 16,2012

2 Thomas F. Gibson, Esq. Judith A. Corrigan, Esq., Deputy General Counsel, PERAC Timothy J. Smyth, Esq., General Counsel, Boston Retirement Board Michael Sacco, Esq. Crystal Matthews, Esq., Associate General Counsel, State Board of Retirement Kathleen Kiely-Becchetti, Esq., Exec. Director, Norfolk County Retirement Board James H. Quirk, Jr., Esq.

3 Judith A. Corrigan, Esq. Deputy General Counsel, PERAC

4 Any member in service classified in Group 1, Group 2 or Group 4 who is unable to perform the essential duties of his job and that such inability is likely to be permanent by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, his duties at some definite place and at some definite without serious and willful misconduct on his part upon his written application on a prescribed form filed with the shall be retired for accidental disability (Emphasis supplied).

5 A line was drawn in As an initial matter, we might not draw it in the same place today. The rule is, however, well established. Consistency of treatment provides fairness among employees Namvar v. Contributory Retirement Appeal Bd., 422 Mass (1996).

6 Boston Retirement Board v. Contributory Retirement Appeal Board, 304 Mass. 109 (1959) Nurse on her way to lunch fell on the stairs and was injured. Held: To say that a person who falls while descending a flight of stairs on her way to lunch sustains an injury while in the performance of her duties would stretch the meaning of the statute beyond permissible limits.

7 Boston Retirement Board v. Contributory Retirement Appeal Bd., 340 Mass. 112 (1959) Matron at East Boston Stadium was injured when she fell in a hole on the premises of the stadium while returning from lunch. Held: Not eligible, same reasoning as companion case.

8 Community college professor ate lunch in the college cafeteria, then departed the cafeteria to go back to her office to hold office hours for students. She was injured in a slip and fall on her way back to her office. Held: She is not eligible for accidental disability retirement benefits. If the employee had been going from one place at which she had had an employment obligation to another such place, if she had had an employment duty at the cafeteria (as well as at her office), or if she had been performing a duty of her employment while walking to her office, the result would be different. Namvar v. CRAB, 422 Mass (1996)

9 Richard v. Retirement Board of Worcester: Nurse injured in a car accident driving to her first stop of day. Connolly v. CRAB (slip opinion): Building Inspector injured replacing a water cooler bottle at work. Replacing water cooler bottles not in job description. Damiano v. CRAB: Employee injured during coworker horseplay while at work.

10 Retirement Bd. of Salem v. CRAB: Employee suffering a heart attack after work nonetheless eligible for ADR, as stressor which caused heart attack occurred in the performance of her duties.

11 Doucette v. State Board of Retirement & PERAC, (July 22, 2010) a bathroom case Norfolk County Retirement Bd. & Preibis v. PERAC, (March 25, 2005) a going from one place you have an employment duty to another place you have an employment duty case

12 Judge Ernest Murphy a Superior Court Judge for approximately 8 years. Libeled by the Boston Herald. Hate mail and death threats followed, as well as threats of violence to his family. Protected by State Police for a period of time. Won libel action against paper, but some post judgment conduct questioned.

13 Judge Murphy eventually diagnosed with Post traumatic stress disorder (PTSD), depressive disorder, and various physical ailments brought on by his emotional distress. He sought accidental disability retirements, which were denied by the State Retirement Board.

14 The Court: We conclude that Judge Murphy is not entitled to receive such benefits because he failed to satisfy his burden of proving that the personal injury that resulted in his permanent disability was sustained while he was performing his judicial duties.

15 The Court: The opening and reading of mail that has arrived in chambers is not described in the outline as one of the duties of a Superior Court judge.

16 The Court: to the extent that Judge Murphy viewed the opening and reading of mail that arrived in his chambers as one of his judicial duties, he had the burden of producing evidence to support that fact, even if it was simply his own testimony. Judge Murphy produced no such evidence. Contrary to Judge Murphy's suggestion, we do not take judicial notice that the opening and reading of mail by a judge in chambers is a judicial duty because, although it may be for some judges, it may not be for others.

17 Second, with regard to whether Judge Murphy was engaged in the performance of his judicial duties by virtue of opening and reading his mail, Judge Murphy presented no evidence to show that this activity was one of his judicial duties. The realm of judicial duties is wide and varied, depending on the individual judge and the court.

18 The mere fact that an employee is in his office during regular work hours does not necessarily mean that the employee is engaged in the actual performance of the duties that the employee has undertaken to perform on behalf of the public.

19 Timothy J. Smyth, Esq. General Counsel, Boston Retirement Board

20 G.L. c. 32, 15(4) Forfeiture of pension upon misconduct. In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of section one to twenty-eight, inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member. The said member or his beneficiary shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero.

21 Boards will often first hear about arrests of Members in the media Upon notice of an arrest, Board should put Member on notice that a final conviction may result in pension forfeiture. If the attorney general or a district attorney becomes aware of a final conviction of a member of a retirement system under circumstances which may require pension forfeiture, s/he is mandated to notify PERAC of such conviction. Nonetheless, it is prudent to monitor the criminal trial as this does not always occur. Most items in the Court docket are public record. Keep record of the Member s docket number.

22 Make a trip to the Clerk s Office of the Court where the Member is being tried. This is most important if the Member is being tried in a Mass. State District Court. If the Member is being tried in Federal District Court, most filings, and even some transcripts, can be obtained on the PACER website at a cost. Sometimes members are first arraigned in the District Court, but later indicted and arraigned again in the Superior Court. This will result in a change of docket number.

23 Upon final conviction, Board should obtain a certified copy of the conviction and a transcript of the plea colloquy or sentencing hearing. Some Members do not request a hearing, however, most do. Take steps to schedule a hearing with a hearing officer as soon as possible in compliance with MGL ch. 32, sec. 16(1). If the member is being sentenced to incarceration, it is advisable to hold the hearing before the report date. Many Federal inmates are incarcerated out of state causing problems with scheduling of hearings.

24 Proceedings may be initiated by the Retirement Board, Head of Member s Department, PERAC, Board of the Commonwealth or any political subdivision, County Commissioners or Board of Selectmen. Procedures set forth in Section 16(1) must be adhered to. The Member has the option of having the hearing conducted in executive session. At the beginning of the hearing, confirm with the Member that he is not under the influence of alcohol, narcotics or any medication that would impact his testimony. Provide copies of all exhibits to the Member and make sure that he has the opportunity to offer any into the record. Documents such as certified copies of conviction, guilty plea or sentencing transcripts, job descriptions should be considered as exhibits.

25 If Member appears pro se, advise member that he has the right to counsel. If the Member states he wishes to retain counsel, stop the hearing and reschedule. After the hearing, both sides should be given an opportunity to submit post-hearing briefs. A copy of the hearing officer s Recommended Decision must be provided to the Member.

26 Statute of limitations does not apply in a 15(4) forfeiture case. Not a contract action subject to the six year statute of limitation. Viewed as a ministerial step A pension forfeiture under 15 (4), is mandatory and occurs by operation of law.... [It] is an automatic legal consequence of conviction of certain offenses. MacLean v. State Bd. of Retirement, 432 Mass. 339, (2000).

27 Violations of the laws applicable to his office or position Not limited to violations of highly specialized crimes addressing official actions or criminal conduct committed in the course of official duties. Encompasses criminal activity connected with the office or position. Gaffney v. Contributory Ret. Appeal Bd., 423 Mass. 1, 4-5 (1996). A case by case analysis looking for direct link between offense and position is required. Scully v. Ret. Bd. of Beverly, 80 Mass. App. Ct. 538 (2011) Former library employee s pension should not be forfeited following conviction of possessing child pornography viewed on home computer as not directly linked to his position. State Bd. of Ret. v. Bulger, 446 Mass. 169 (2006) - Court looked at the laws applicable to the position of Clerk Magistrate and held that the member violated those laws.

28 Definition: The term final conviction, as it is used in 15(4), should be given its specialized technical meaning, which is the sentence that is imposed in a criminal proceeding. State Bd. of Ret. v. Woodward, 446 Mass. 698, 707 (2006).

29 Governed by MGL c. 32, 16(3)(a) Board renders a decision & member is aggrieved Petition is filed in District Court where member resides within 30 days District Court reviews the decision, hears evidence, & determines whether Board action was justified

30 State Bd. of Ret. v. Bulger, 446 Mass. 169 (2006) Holding Convictions of perjury and obstruction of justice violate laws applicable to the position of clerk-magistrate and mandate forfeiture of retirement allowance. Application 15(4) is a penal statute and should be narrowly construed A member may be convicted of a criminal offense that does not involve a violation of the laws applicable to his position; thus, such member s pension would not be forfeited.

31 Scully v. Ret. Bd. of Beverly, 80 Mass. App. Ct. 538 (2011) Procedural Posture Member sought review of Beverly Retirement Board s decision to revoke his benefits following convictions of possession of child pornography. He filed a petition in the District Court, where the judge affirmed the Board s decision. Following affirmance by the Superior Court, he appealed. Holding Former library employee s convictions for possession of child pornography were not directly linked to his position as community services director at the library. The employee did meet a minor in the library and invited him to his home to view pornography on his home computer. However, there was no conviction related to his interaction with the minor, which would have provided a direct link. Therefore, his pension should not subject to forfeiture. Application Work related conduct which solely leads to an investigation which may result in conviction does not satisfy the direct link requirement.

32 PERAC v. Bettencourt, 81 Mass. App. Ct (2012) Procedural Posture The Peabody Retirement Board approved the Member s retirement following the member s conviction of unauthorized accessing of a computer system. PERAC denied approval. The member sought review in the District Court, where PERAC was overruled. Following affirmance by the Superior Court, PERAC appealed. Holding Accessing an unauthorized computer system using police equipment and targeting fellow police officers is a direct link to the member s office or position and results in pension forfeiture. Application The fact that the member used department equipment in facilitating his crime while on duty provides a direct link to the crime, where in Sully, there was no direct link because there was no evidence library computers where used to possess child pornography. The case was remanded to the District Court to consider the member s argument that forfeiture violates the 8th Amendment of the Constitution.

33 Maher v. Ret. Bd. of Quincy, 82 Mass. App. Ct (2012) Procedural Posture Following retirement, the member was convicted of breaking and entering, and theft, as he broke into his personnel director s office and stole his own file. The Board voted to terminate his benefits which was affirmed by the SJC. The member then sought return of his regular deduction, which the Board refused as his benefits received prior to termination exceeded his deductions. Superior Court judge found for the member and the Board appealed. Holding The member is entitled to a return of his accumulated total deductions less annuity payments pre-conviction, annuity payments post-conviction, and pension payment made post-conviction. Application Ch. 32, 15(4) requires boards to refund a member s deductions post-conviction regardless of the pension benefit received prior to the conviction as the statute clearly states forfeiture after final conviction, and provides for a return of his accumulated total deductions.

34 Michael Sacco, Esq.

35 Disability as the result of exposure to trauma. Disability as the result of inappropriate treatment or conduct. Standard is the same disability must be the result of an incident or series of incidents, or if the product of gradual deterioration, the result of an identifiable condition not common or necessary to all or a great many occupations Plymouth County Retirement Board v. Contributory Retirement Appeal Board, 60 Mass. App. Ct. 114, 118 (2003); Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 479, 485 (1985).

36 Mental disorder which occurs as the result of a traumatic or terrifying incident. Most often seen in public safety positions, but not confined to those positions. By definition individual not aware of the effects of the trauma until some point in the future.

37 M.G.L. c. 32, 7(1) No such retirement shall be allowed unless such injury was sustained or such hazard was undergone within two years prior to the filing of such application or, if occurring earlier unless written notice thereof was filed with the board by such member or his behalf within ninety days after its occurrence. M.G.L. c. 32, 7(3) Lapse of time will not prevent the award of benefits if the member has received either worker s compensation or injured on duty benefits Mary Jo Daley v. Middlesex County Retirement Board, CR (October 7, 1999) Underscored traumatic exposure not enough must occur within 2 years of filing of the application if no injury report and no worker s compensation or injured on duty pay.

38 Randolph Boothby v. Hull Retirement Board, CR (August 24, 2007). Incident report not enough in Boothby DALA ruled that there must be some contemporaneous complaint or treatment regarding stress or anxiety to satisfy the notice requirement. Difficult standard by its very nature, employee may not always realize the adverse impact of the traumatic event hence post traumatic.

39 Personal injury defined same as worker s compensation. M.G.L. c. 152, 1(7a) no mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury. Sugrue v. Contributory Retirement Appeal Board, 45 Mass. App. Ct. 1 (1998) job conflicts and arguments with superiors and subordinates, including a series of incidents over several years creating feelings of persecution and unfair treatment and ultimately a diagnosed mental illness, do not distinguish [the applicant s] occupation from a wide variety of other occupations where employees face similar pressures and demands.

40 Intentional infliction of emotional distress Agis v. Howard Johnson Co., 371 Mass 140, (1976) must prove four factors: 1)the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; 2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community; 3)that the actions of the defendant were the cause of the plaintiff s distress; and 4)that the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable man could be expected to endure it.

41 Evidentiary hearing. Causation legal question for board, not just medical question for the medical panel. PTSD cases employee must document the claim and if no injury report, must have sought some treatment or demonstrated change in behavior or demeanor. Must examine other issues self medicating, alcohol, family issues which came first?

42 Workplace conflict cases board must determine if actions rise to the level of a personal injury or hazard undergone, or if there was an intentional infliction of emotional distress. How? All parties, including those accused of the wrongdoing, must be allowed to testify. Board should make threshold determination on causation if only option is accidental disability before going to medical panel.

43 Crystal Matthews, Esq. Associate General Counsel, State Board of Retirement

44 Any active member as of April 2, 2012, who has served in more than one group may elect to receive a retirement allowance consisting of pro-rated benefits based upon the percentage of total years of service that the member rendered in each group.

45 The retirement allowance for members who became members on or after April 2, 2012, and who served in more than 1 group, shall receive a retirement allowance consisting of pro-rated benefits based upon the percentage of total years of service that member rendered in each group. *Mandatory *Only applies to G.L. c. 32, 5 benefits

46 G.L. c. 32, 5(2)(a) The pro-rated benefits shall be calculated in a manner prescribed by the commission. (See PERAC Memo#29, 2012, March 22, 2012) A member who entered service on or before April, 2, 2012 and seeks Group 2 or Group 4 classification and is no longer a public employee at the time of the member's retirement shall be classified based on the position from which the member was last employed. (Deferred Retirees)

47 Add together the retirement calculation for each job group: Age factor at age of retirement with job group x Creditable service worked for job group x High three-year (or five-year) salary average = Retirement calculation for one job group

48 Member retires at age 55. He served 15 years in group 2 and 5 years in group 1. His average high three-year salary average is $80,000. Group 2 2.0% x 15 yrs. x $80,000 = $24,000 Group 1 1.5% x 5 yrs. x $80,000 = $6,000 Total Retirement Allowance is $30,000 (Without pro-ration his pension would be $24,000)

49 A member of the MSERS seeking pro-ration of group classification of his/her positions shall be required to complete a Group Classification Questionnaire for each position. Once completed by the member, a copy of the Questionnaire and narrative description must be forwarded to the member s past or present employer for completion. Employer submits job description and period(s) of member s employment and position(s) held.

50 Positions held a number of years ago Finding job descriptions No supervisor available to execute Questionnaire or verify job duties Former positions held in another Contributory Retirement System?

51 Department of Children and Family Fiscal Year 2013 Budget, Outside Section 62. Section 3 of chapter 32 of the General Laws is hereby amended by inserting after the word "prisoners", in line 252, as so appearing, the following words:- ; employees of the department of children and families holding the title of social worker A/B, C or D or successive titles who have been employed in such titles for 10 years or more.

52 Kathleen Kiely-Becchetti, Esq. Executive Director, Norfolk County Retirement System

53 Section 8(1)(a) Any member retired for accidental or ordinary disability retirement is required to participate in an evaluation to determine whether the member is able to perform the essential duties of the position from which he retired. PERAC may require an evaluation once per year during the first two years and once in each three year period thereafter and at anytime upon member request.

54 The evaluation begins with a medical records review from which PERAC can determine: Future evaluations are unwarranted based on catastrophic nature of member s illness or injury; Retired member is unable to perform the essential duties of former position or similar job; or A comprehensive medical evaluation must be scheduled. Member s refusal, without good cause, to participate in or submit to such evaluation will result in prompt termination of benefits provided member be given written notice and opportunity to be heard.

55 Rehab Program - if it is determined that the retired member may benefit from a rehabilitation program and such program is cost effective, the Board shall provide and pay for such program. No Action / Possible Appeal - if retired member is found unable to perform essential duties, no action is required. However, if retired member sought restoration he may appeal such decision. Restoration to Service If retired member is found able to perform the essential duties he shall return to service.

56 Within Two Years of Disability Retirement: Member is required to return to former position or similar position, provided a vacancy exists and retirement allowance is revoked. If there is no vacancy, a reduction must occur to create a vacancy. After Two Years of Disability Retirement: Member is required to return to former or similar position, provided a vacancy exists and retirement allowance is revoke. If there is no vacancy, preference will be granted for the next available position or similar position for which member is able to perform the essential duties.

57 Member will continue to receive his retirement allowance until being returned to his former or similar position. Post retirement earning limitations remain in effect. A disabled retiree who has been separated from his position for more than five years may be required to complete a retraining program.

58 Any creditable service in effect at the time of member s disability retirement will be totally restored. Upon subsequent retirement, member will also receive creditable service for the period of disability retirement. No additional contributions will be required.

59 Kathleen Kiely-Becchetti, Esq. Executive Director, Norfolk County Retirement System

60 Any member retired under section 5 or 10 shall be eligible to be reinstated if the retired member repays to the retirement system from which he retired an amount equal to the total amount of any retirement allowance received by the retired member, together with buyback interest. Note the exclusion for members retired under other sections, such as, but not limited to, Section 28n. The member s date of entry into service shall be the date such member waived his retirement allowance or the date of reinstatement, whichever occurs earlier.

61 The retirement board should complete the Application for Reinstatement to Service form, have the member review and sign. Once the member signs the application they are transformed from retiree status to member in service status.

62 Repayment can be made in lump sum or in installments as the retirement board prescribes. Upon reinstatement, regular deductions shall be made from regular compensation. Upon completion of repayment, the member shall be entitled to creditable service for all periods of service for which deductions were made from member s regular compensation.

63 If the member has less than 5 years of reinstatement service, upon retirement: Member shall receive a refund of payments made to the system. Member shall not be entitled to any creditable service. If the member has 5 years or more of reinstatement service, upon retirement: Member shall be entitled to creditable service upon completion of repayment and payment of regular deductions. In the event that a retirement allowance becomes effective for the member prior to completion of repayment, the member shall be entitled to credit for a proportion of reinstatement service, provided that the member would have otherwise been eligible for that prior service.

64 James H. Quirk, Jr., Esq.

65 Warren Gosson v. Dukes County Retirement Board; 2010-P-1057; CV Barnstable County Retirement Board (Shirley Regas) v. PERAC; Barnstable Superior Ct PERAC v. Edward A. Bettencourt & Another (Peabody Retirement); 2011-P-0323; SUCV Joseph A. Upton: Employee - Suffolk County Sheriff s Department: Employer, Department of Industrial Accidents #

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