Retirement Board v. Tyler

Kantrowitz, J. In this pension forfeiture matter, we hold that although the criminal actions of Anthony Tyler were reprehensible, they did not violate, under applicable statutes and case law, his office or position as a firefighter. As such, we are constrained to reverse a determination to the contrary. Facts. The defendant, Anthony Tyler, was a Maynard firefighter and an emergency medical technician. In 2006, it came to light that Tyler had, for a number of years, been sexually abusing young boys. One of Tyler’s victims was the son of another Maynard firefighter; the other victim was also related to [110] a Maynard firefighter.2 Tyler was indicted on various charges in 20063 and again in 2007.4 Tyler could have been discharged from his position on the grounds of moral turpitude, in which case he would have forfeited his pension. G. L. c. 32, § 10(1). See Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 648-653 (2010). Instead, the town of Maynard (town) and the Maynard fire department (department) took no action. Conversely, Tyler, in 2006, following his first set of indictments, applied for retirement benefits, which were granted. Tyler later pleaded guilty to some of the various indictments, others being nol pressed, and began serving his prison sentence. Upon notice from the district attorney’s office that Tyler’s case had been resolved, see G. L. c. 32, § 15(5), the Maynard retirement board (board) began an inquiry to determine whether, under G. L. c. 32, § 15(4), Tyler remained entitled to his pension.5 After a hearing, the board voted to suspend Tyler’s pension, generally concluding that “the fact that the molestations were committed on a fellow firefighter’s son [constituted a] ‘direct link’ ” between Tyler’s offenses and his position. Tyler appealed the board’s decision to the District Court. After a hearing, a District Court judge set aside the board’s decision and ordered that Tyler’s benefits be reinstated retroactive to the date of their termination.6 The District Court judge [111] concluded that “Tyler’s convictions do not constitute violations of the laws applicable to his position as a Maynard firefighter with a nexus sufficient to trigger pension forfeiture under G. L. c. 32, § 15(4).” The board then filed the instant certiorari petition to the Superior Court. Based on the pleadings and the administrative record, the Superior Court judge concluded that in this case, a sufficient nexus or “direct link” existed between Tyler’s criminal conduct and “the laws applicable to his office or position” as to require forfeiture. Law. This case is controlled by G. L. c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, and subtitled “Forfeiture of pension upon misconduct.” The statute states, in pertinent part, “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” (emphasis added). The scope of the law was enunciated in Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 3-5 (1996), where the court held that it was clear that the Legislature intended the forfeiture provision to apply to any criminal activity connected with the office or position of the wrongdoer. The court, however, “did not intend pension forfeiture to follow as a sequelae of any and all criminal convictions. Only those violations related to the member’s official capacity were targeted.” Id. at 5. Further, the court enunciated that the facts of each case had to be examined to determine the existence of “a direct link between the criminal offense and member’s office or position.” Ibid. In Gaffney, there was such a link in that the member, the superintendent of Shrews-bury’s sewer and water department, stole monies from his own department. See Durkin v. Boston Retirement Bd., post 116, 118-119 (2013); Flaherty v. Justices of the Haverhill Div. of the Disk Ct. Dept. of the Trial Ct., post 120, 122-123 (2013). Similarly, in State Bd. of Retirement v. Bulger, 446 Mass. 169, 179 (2006), the court held that by committing perjury before a Federal grand jury and obstructing justice, the member had violated the tenets of his clerk-magistrate position in that telling the truth was at the heart of a clerk-magistrate’s role. As the member’s crimes could not be separated from the nature of [112] his particular office, his pension was rightfully withheld. Id. at 179-180. Conversely, in Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. at 654-655, we held that the member, a custodian, was improperly denied his pension after he was convicted of indecent assault and battery of his daughter. We concluded, in part, that there was no direct link between his repugnant criminal actions and his job. Id. at 654. So too, in Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538 (2011), a pension was ordered reinstated. The member, a library employee, was arrested after the police discovered images of child pornography on his home computer. Id. at 539. We held that “[wjhile we do not ignore the severity of the offenses to which [the member] pleaded guilty, . . . the facts underlying the convictions did not present ‘the type of direct link intended by the Legislature.’ ” Id. at 543, quoting from Herrick, supra at 654. Discussion. The key question thus is whether Tyler’s reprehensible criminal activity violated a law applicable to his position. General Laws c. 32, § 15(4), has consistently been given a narrow interpretation. Bulger, supra at 174-175. Had the Legislature wished to broaden the statute’s reach, it clearly could have done so. That it did not compels our conclusion. Here, the board and the Superior Court judge determined that “although there is no evidence that the crimes took place at the fire station, or that Tyler was ever on duty when he committed the crimes, the fact that the crimes were perpetrated on a coworker’s child” was evidence of a “direct link.” Additionally, given Tyler’s position as a firefighter and his obligation to protect the public, his criminal activities “violated the fundamental tenets of his position.” These considerations, while understandable, are so broad however as to engulf nearly every public official, especially police officers and firefighters, convicted of any crime. The reach of the statute as currently written is not so broad. A direct link must be established between one’s actions and his official position. We recognize the essential role firefighters play, extinguishing fires and protecting life and property. G. L. c. 48, § 42. Although Tyler knew his victims through his fellow firefighters, [113] his offenses were nonetheless personal in nature, occurring outside the firehouse while Tyler was not on duty. Moreover, 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.7 Conclusion. As there was no “direct link” between Tyler’s conviction and his position, the judgment of the Superior Court is reversed. So ordered. Footnotes [2] The Maynard board of retirement, in an unchallenged finding, concluded that there was “no evidence” that the incidents took place on town property or that Tyler was on duty when the incidents took place. [3] Tyler was indicted on three counts of indecent assault and battery on a person over fourteen. [4] Tyler was indicted on one count of rape and one count of indecent assault and battery on a person over fourteen. [5] During the subsequent hearing, Tyler’s direct superior, Fire Chief Stephen Kulik, testified that while he was aware of the criminal charges against Tyler, as well as his arrest, the department took no action to discipline him. Furthermore, Kulik had a discussion with the board about Tyler’s retirement application prior to its approval. [6] The District Court judge observed that “[ajlthough Tyler knew his victims through his fellow firefighters, his offenses were personal in nature.” The District Court judge went on to observe that “[tjhere is no evidence in the record that Tyler used a fire truck ... to entice a young person; or that while in uniform he importuned a young person to visit a past fire site in order to commit indecent acts.” [7] The board also claims that Tyler violated the rules of the department, which constitutes independent grounds to deny his pension. While his convictions violated the department’s rules, and could have affected his employment or civil service status, they do not affect his pension, other than to say he could have been fired for moral turpitude and lost his pension.