Opinion
No. 11–P–1625.
2012-06-25
Ralph J. MAHER v. RETIREMENT BOARD OF QUINCY.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2001, Ralph J. Maher, then the chief plumbing and gas inspector for the city of Quincy, broke into the personnel director's office and stole some files (apparently his own, and apparently for the purpose of removing materials critical of his own performance). Shortly thereafter, he took a superannuation retirement. Later, he was convicted of breaking and entering, theft, and a related offense. At that point, the retirement board of Quincy (board) began proceedings under G.L. c. 32, § 15, to terminate Maher's retirement allowance. After review in this court, Maher v. Justices of the Quincy Div. of the Dist. Ct. Dept., 67 Mass.App.Ct. 612 (2006), and the Supreme Judicial Court, Maher v. Retirement Bd. of Quincy, 452 Mass. 517 (2008), judgment entered approving the board's termination decision.
Thereafter, Maher sought the return of his “regular deductions,” that is, the employee contributions to the Quincy retirement system. See G.L. c. 32, §§ 1 & 22(1)( b ).
The board refused any return, generally contending that because Maher had already received retirement allowance payments of about $76,000, (roughly $56,000 before his conviction and $20,000 after), which exceeded the total amount of his contributions (about $50,000), nothing remained owing. Maher then filed the present civil action in Superior Court. The judge, on summary judgment, ruled that G.L. c. 32, § 15(4),
A public employee's pension is comprised of two components. The first component is “regular deductions,” also known as employee contributions, see G.L. c. 32, §§ 1 & 22(1)( a ), which are deducted from employee pay. The “regular interest” on those deductions, see G.L. c. 32, §§ 1 & 22(6)( a ) & ( b ), and the regular deductions comprise the employee's “accumulated total deductions.” See G.L. c. 32, § 1. The accumulated total deductions are then invested in an investment account. The second component is made up of the employer contributions, see G.L. c. 32, §§ 1 & 22(3), which are also invested. At retirement, the employee receives a “retirement allowance” consisting of an “annuity” funded by the accumulated total deductions, and a “pension,” funded by employer contributions and earnings. G.L. c. 32, § 1.
required the board to return Maher's contributions, and that, further, Maher was entitled “to the return of his total accumulated deductions without any offset by the amount he received in retirement allowance prior to his conviction.”
.Section 15(4), inserted by St.1987, c. 697, § 48, states: “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.” (Emphasis supplied).
Although we somewhat stand in the shoes of the motion judge and make an independent review of the same record, see Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass.App.Ct. 267, 268 n. 5 (2007), and the judge's decision does not relieve us of our need to review the record independently, we are greatly assisted here by the motion judge's very thoughtful memorandum of decision.
The board has appealed, arguing that Maher was required to repay all retirement benefits that he received between January 16, 2002, his superannuation retirement date, and the date the board actually voted to end his pension, December 22, 2003.
We conclude that the language of the statute does not support the board's position. The board would have us ignore the phrase “after final conviction.” The language that the Legislature chose—“A return of ... total deductions,” without interest—clearly contemplates a different scheme. Massachusetts case law confirms this understanding. “Unlike the crimes enumerated in § 15(3A) which clearly cause punitive loss of a member's accumulated deductions, the offenses in § 15(4) cause loss of only future pension benefit payments and accumulated interest.” Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 3 n. 3 (1996) (emphasis supplied).
On the basis of total dollar amounts of the pension payments made, and the allocation of those payments attributable to Maher's regular deductions, i.e., employee contributions, all of which are essentially stipulated, we conclude that Maher is entitled to a payment of $27,025.68, which we explain as follows: $49,526.90 (employee contributions), minus $9,192.72 (annuity portion of payments already made preconviction), minus $2,147.69 (annuity portion of payments made postconviction), minus $11,160.81 (pension portion of payments made postconviction), calculating to $27,025.68, as Maher's positive net balance.
The judgment is vacated and a new judgment consistent with this memorandum and order shall enter.