Ralph the Plumber Loses Pension For Efforts To Remove Crap From Personnel File

The recent decision by the Massachusetts Supreme Judicial Court, Ralph J. Maher v. Retirement Board of Quincy , SJC-10182 (Nov. 6, 2008), serves as a stark cautionary tale to public employees, and as a reminder that courts take a hard line against misconduct that involves an abuse of authority or integrity. Public employees breaking the law must be aware that they risk not only criminal charges, but loss of their pensions as well.

General Laws chapter 32, §15 identifies a number of pension-related penalties awaiting public employees who engage in certain misconduct. Public employees who misappropriate funds or property can lose their retirement allowance up to the cost of their misappropriation and prosecution. G.L. c. 32, §15(1). Public employees convicted of misuse of government funds or property, or crimes related to improper police or licensing duties, lose their retirement allowance as well as their contributions to the system. G.L. c.32, §15(3) & (3A). Public employees who are convicted of crimes that relate to their job lose their pension, but not their contributions to the retirement system, under state law. G.L. c.32, §15(4).

The case of Maher dealt with the last penalty. Here, Quincy’s former chief plumbing and gas inspector broke into the city’s personnel office in order to remove critical portions of his personnel file. He sought to improve his chances of being re-appointed to his position, which paid $125,000 a year. Instead, he was indicted on charges of breaking and entering; stealing in a building; and wanton destruction of property. He ultimately pleaded guilty, served six months of unsupervised probation, and paid a total of $900 in fines and restitution.

After he officially retired, the Quincy Retirement Board instituted proceedings to forfeit the inspector’s pension, under G.L. c.32, §15(4). The Board ultimately voted to forfeit the pension, a loss of approximately $576,000.

The SJC ruled that the loss of the pension did not violate the U.S. Constitution’s prohibition on “excessive fines.” The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Court had little difficulty concluding that forfeiture of a $576,000 pension was not a grossly disproportionate fine for illegal efforts to retain a $125,000 a year job, especially considering the damage inflicted to the public trust by the employee’s criminal conduct.

Interestingly, the SJC did not discuss whether the crimes actually related to his position for purposes of G.L. c.32, §15(4), given that his crimes involved property, as opposed, arguably, to his official job duties.

Public employees who even daydream about engaging in misconduct may want to think twice about whether actions are worth risking losing their job, health insurance, freedom, and pension.

Sandulli Grace, PC Wins Unemployment For Officer Who Persuasively Denies

The Massachusetts Appeals Court upheld a grant of unemployment benefits to a Boston Police Officer terminated for testing “positive” for cocaine on a hair test. In City of Boston v. George Downing , 06-P-1725 (Oct. 31, 2008), the Court ruled that the Division of Unemployment Assistance properly found that police officer did not use cocaine as alleged, based upon his repeated denials of drug use and his extensive efforts to establish his sobriety. While this decision only entitles the former officer to unemployment benefits (as opposed to reinstatement with back pay), it renews faith that a neutral factfinder can disregard drug use hysteria and instead conclude that hair testing is not sufficiently reliable method to determine that a police officer abused drugs.

The claimaint here, George Downing, served as a sworn Boston police officer for nine (9) years before the City terminated him for testing “positive” for cocaine on an annual hair test. The amount of cocaine allegedly found in his hair was barely above the minimum amount necessary to classify his sample as “positive.” Moreover, his tests would have been classified as “negative” if the City applied the original minimum cutoffs. The City has no other evidence that Downing used drugs. To exonerate himself, Downing produced independent drug tests that were negative for all drugs, repeatedly testified under oath that he did not use drugs, and appealed his termination to the Civil Service Commission. Downing also refused the City’s settlement offer, which involved a lengthy suspension and substance abuse rehabilitation. (In a sense, Downing was terminated for refusing the settlement offer).

Downing also filed a complaint against the City at the Massachusetts Commission Against Discrimination. He is one of nearly a dozen African Americans officers and recruits who have been fighting their termination (or bypass) from the Boston Police Department for allegedly “positive” results for cocaine on hair tests. These officers have been challenging the accuracy of hair testing, including whether it reliably shows voluntary drug use (as opposed to cocaine that naturally deposits itself into hair from the environment), and whether it produces results that are “biased.” They have filed claims with the MCAD (which are not being processed in federal court) and the Civil Service Commission.

Employees who lose their job (voluntarily or involuntarily) generally are entitled to receive unemployment benefits so long as they were not terminated for “deliberate misconduct in willful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy.” G.L. c.151A, §25. The DUA examiner (a.k.a. hearing officer) reviewing Downing’s unemployment claim agreed that he did not use cocaine. As the Appeals Court summarized, she:

explicitly credited Downing’s testimony because, as found by her, it was supported and bolstered by the following facts. First, Downing twice promptly had submitted himself to further and independent drug testing at his own expense, acts she concluded would be improbable had he in fact used drugs. Second, those two independent tests proved negative as to cocaine use. Third, Downing had refused to enter into a drug rehabilitation agreement even though doing so would have permitted him to remain employed by the department.

The Appeals Court upheld the agency’s grant of unemployment benefits. The Court rejected arguments that the City’s hair test is irrefutable proof of drug use.

Downing was represented by Sandulli Grace, PC Attorney Patrick Bryant (on behalf of the Boston Police Patrolmen’s Association, Inc.) in this case. Bryant also represents Downing and several other former Boston police officers, who were terminated for testing “positive” for cocaine, at the Civil Service Commission.