Retirement Board v. Tyler

Graham, J.

(dissenting). On October 12, 2006, Anthony Tyler, a Maynard firefighter and emergency medical technician (EMT), was indicted on charges that, for years, he had been sexually molesting his neighbor’s minor child. Tyler’s neighbor was a fellow Maynard firefighter. On the same day, Tyler resigned and submitted an application for superannuation retirement. His application was accepted, and Tyler began collecting retirement benefits. On March 20, 2008, he pleaded guilty to three counts of indecent assault and battery on a person fourteen years or older; he was sentenced to three years and a day in State prison and was placed on probation for five years, probation to commence from and after the sentence.

After Tyler began serving his sentence, a second sexual abuse victim came forward, and on July 22, 2008, Tyler pleaded guilty to indecent assault and battery on a person fourteen years or older, and was sentenced to three years and a day, from and after the sentence he was already serving.

Following the criminal proceedings, the Maynard board of retirement (board) conducted a hearing and determined that Tyler was required to forfeit his retirement allowance pursuant to G. L. c. 32, § 15(A).1 The board’s decision was reversed by a judge of the District Court. On certiorari review, a judge of *114the Superior Court quashed the decision of the District Court judge and remanded the case to the board, concluding that Tyler was not entitled to receive his retirement allowance.

The majority has concluded that, while Tyler’s criminal behavior was “reprehensible,” his behavior and convictions do not constitute violations of the laws applicable to his position as firefighter, within the purview of G. L. c. 32, § 15(4), and did not involve the administration of his duties and responsibilities as a firefighter and EMT.* 2 I dissent.

General Laws c. 32, § 15(4), was enacted “to broaden the range of crimes that would lead to pension forfeiture” after the Supreme Judicial Court’s decision in Collates v. Boston Retirement Bd., 396 Mass. 684 (1986). Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 3 (1996). To determine whether a member’s criminal conviction falls within the scope of G. L. c. 32, § 15(4), we must “consider what laws are applicable to the office or position.” State Bd. of Retirement v. Bulger, 446 Mass. 169, 175 (2006).

While there is no statute creating the position of firefighter, G. L. c. 48, § 42, as amended by St. 1973, c. 1048, § 1, provides for the establishment of fire departments and charges the department chiefs with “extinguishing fires in the town and the protection of life and property in case of fire.” “There are certain forms of employment which 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) (specifically mating reference to cases involving police officers, judges, and teachers). Illustrative of the special trust conferred on firefighters and EMTs is G. L. c. 119, § 21, as amended through St. 2008, c. 176, § 83, which includes firefighters and EMTs as “mandated reporters].” *115Mandated reporters are required to file a report if they have “reasonable cause to believe that a child is suffering physical or emotional injury resulting from . . . abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse.” G. L. c. 119, § 51A(a), as amended through St. 2008, c. 176, § 95.

The majority places great significance on the fact that Tyler’s criminal convictions were for conduct that did not occur within the firehouse or while he was on duty. However, the required nexus is not that the crime be committed while the member was on duty, in the workplace, or using the tools of the workplace, but only that the criminal behavior be connected with the member’s position. “The nature of [the member’s] particular crimes cannot be separated from the nature of his particular office when what is at stake is the integrity of [the] system.” State Bd. of Retirement v. Bulger, 446 Mass. at 180.

Here, Tyler was sentenced to prison for repeatedly sexually abusing young victims, the very type of criminal behavior he was required by law to report. His convictions are directly related to his position as a firefighter and EMT because they demonstrate a violation of the public’s trust as well as a repudiation of his official duties. Clearly, this is not a case where the words of the statute are “stretched to accomplish a result not expressed.” Collatos, supra at 687. Contrast Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 654 (2010) (criminal behavior of a custodian, convicted of indecent assault and battery of his daughter, not directly linked with his job); Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538, 543-545 (2011) (action of a library employee, who kept images of child pornography on his home computer, did not present the type of direct link intended by the Legislature).

I conclude that Tyler’s convictions involved violations of the laws applicable to his positions as firefighter and EMT pursuant to G. L. c. 32, § 15(4), and mandated the forfeiture of his retirement allowance.

The statute states in pertinent part: “In no event shall any member after *114final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.” G. L. c. 32, § 15(4), inserted by St. 1987, c. 697, § 47.

The majority acknowledges that, had Tyler not resigned so quickly, he could have been discharged from his position on the grounds of moral turpitude, in which case he would have forfeited his pension. See G. L. c. 32, § 10(1); Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 648-652 (2010).