On August 16, 2006, the Massachusetts Appeals Court issued a decision that makes it harder for public employees who had to retire because of a job-related disability to earn income during retirement. In essence, the Court decided that all monies listed on a W-2 form may be considered “income” for purposes of the earnings limitation placed on disability retirees from public employment.
Massachusetts law allows public employees who are disabled because of an on-the-job injury to retire with 72% of their pay at the time of injury or average from most recent 12 months (whichever amount is greater). The 72% amount is non-taxable. (Compare this amount with the 80% taxable benefit they public employees may received if they work until regular retirement age.) Massachusetts law also limits how much money disability retirees can earn from any other employer, whether in the public or private sector. Disability retirees may receive no more than $5,000 beyond the current salary of their position. Disability payments count toward this cap, too.

The question in Gorman vs. Contributory Retirement Appeal Board was how to calculate the income that counts toward the cap. Gorman, a disability retiree, had been working at a job that required him to incur certain job-related expenses. He did not file a submit receipts for expenses so as to receive a check from his employer for these claims. Instead, Gorman received, in addition to his earnings, payments for ‘nonreimbursed expenses’ in his paychecks. The employer included these payments in his W-2 Form. When Gorman did his taxes, he listed the W-2 amount, which included the reimbursements. Hethen properly claimed these job-related expenses as deductible, which reduced his adjusted gross income to reflect his actual earnings. Here’s why the method of reimbursement payments matters to Gorman’s case: the amount of income with the reimbursements was lower than the maximum set by statute; the amount with the reimbursements was over the limit.

The Appeals Court’s decision relied upon a memo by the Public Employee Retirement Administration Commission, which oversees all public employer retirement systems in the Commonwealth. The memo (called PERAC Memo #64/1998) said that income for purposes of the statutory earnings limit included: (1) earned income, which implied some labor, manufacturing or supervision; or (2) profits from the operation of a business, regardless of how the retiree categorizes such income for income tax or other purposes.

Gorman argued that the memo didn’t apply to him Because the reimbursements for his business expenses are not earnings from labor, manufacturing or supervisionand they also are not profits from operating a business. Still, the Appeals Court agreed with the Contributory Retirement Appeal Board it may count all monies listed on a W-2 form, no matter how Gorman categorized some of the money for income tax purposes.

NOTE: The Contributory Retirement Appeal Board did agree that, if Gorman had documentation that he had incurred expenses, provided receipts to the employer and received reimbursements, those payments would not be counted as income. The bottom line of Gorman v. CRAB is that disability retirees who incur work-related expenses should submit receipts to their employers and receive a separate reimbursement check that reflects actual expenses.

— John M. Becker

A public employee who engages in private misconduct can lose his or her pension, even if the misconduct is unrelated to any official action, so long as the conduct involves criminal dishonesty. In the much-anticipated decision of State Board of Retirement v. Bulger released Monday, March 6, 2006, the Supreme Judicial Court held that Jack Bulger, brother to Former Senator and U-Mass President Billy and fugitive Whitey, must lose his pension as a result of pleading guilty to charges of perjury and obstruction of justice based on statements made to Federal agents investigating his fugitive brother.
Bulger was a public employee for 37 years, the last 20 as a Clerk-Magistrate of Boston Juvenile Court. Based on statements Jack made during the FBI investigation into the whereabouts of Whitey, the FBI charged him with perjury and obstruction of justice. He ultimately pleaded guilty to four counts.

The SJC case deals solely with the issue of whether, in spite of the guilty pleas, Bulger still may receive benefits under the state retirement system. In a unanimous decision authored by Justice Martha Sosman, the Court answered "NO."

Massachusetts General Laws Chapter 32, §15(4) deprives a public pension to any public employee who receives a "final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance…."

Court cases have frequently held that a convict loses his or her pension if the underlying criminal offense relates to official duties of the public job. In other words, a municipal official who is convicted of skimming funds from the employer obviously loses a pension. See, e.g., Gaffney v. Contributory Retirement Appeal Bd, 423 Mass. 1 (1996). The Bulger case is somewhat unique for the forfeiture arises from indisputably off-duty conduct.

The decision re-affirms the SJC’s view that a) honesty or integrity is fundamental to most public employee jobs, at least those jobs involving courts or law enforcement; and b) dishonesty and interference with law enforcement likely requires loss of the job as well as the pension.

The Bulger case may be troubling in light of another recent SJC case involving public employee misconduct. In City Of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), a unanimous SJC held that a police officer who was found to have repeatedly lied and abused his authority cannot be reinstated to the police department. This irreversible termination must be the result, even where the Union shows that the City has a clear record of suspending, not terminating, officers who engaged in worse conduct, and said officer has a clean disciplinary record.

While this particular Boston officer was never convicted by a jury of perjury or any other crime beyond a reasonable doubt, the SJC’s decision nevertheless relied on the arbitrator’s findings to conclude that he committed perjury. It found perjury to be a capital crime. "One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials." City Of Boston v. BPPA, 443 Mass. 813, 819 (2005)

The specific provision of pension forfeiture law discussed in Bulger, Chapter 32, §15(4), clearly requires that an actual conviction of perjury or obstruction of justice occur before an employee’s pension is forfeited. Other forfeiture provisions establish a much lower threshold. An employee may lose his or her pension if found to have "misappropriated funds." The Courts have permitted expansive interpretations of this definition. For instance, in Doherty v. Retirement Board of Medford, 425 Mass. 130 (1997), a police officer was acquitted of federal criminal charges of stealing a police entrance examination for his son. Nonetheless, the retirement board relied on criminal trial testimony to find that he stole the exam. The Board found that by this action, which involved no financial graft, the employee "misappropriated funds." The appropriated funds consisted of "the salary and other payments received by [officer] from the [employer] by virtue of his fraudulently obtained employment as a police officer."

Going forward, we here at Sandulli Grace will argue that off-duty lying or interference, to disqualify an employee from pension, should be limited to a) employees who take an oath for their job; and b) the lie interferes with compliance with laws or government investigations. By contrast, a lie underlying sick leave use, we believe, should not result in either irreversible termination or pension forfeiture. As the law continues to develop, we will continue to keep you informed.

The Bulger case stands as a stark reminder of the severe civil, criminal and financial consequences that face public employees who are found, rightly or wrongly, to have engaged in criminal misconduct, especially perjury or obstruction of justice, whether on or off-duty.

Municipalities commonly require, as a term and condition of employment, that municipal employees be residents of the City/Town for whom they are employed. This is a very emotional issue for both citizens and employees. The citizens and elected officials often press for residency requirements on claims that it is a benefit to the community for employees to be residents. The theory is that employees who are residents are more committed to the community. They pay taxes in the community, own homes, use the schools and participate in the civic life. Some argue that it is a fair obligation to be required to be a resident in exchange for public employment. However, such requirements put a large burden on the public employees who lose choice in where they can live. This impacts not only the employee him/herself but also the family of the employee. If a family wants to live together a spouse/partner may be limited in where he/she can work, children are limited as to where to attend school and the employee may be unable to be a close part of his/her extended family, including caring for parents or other family members in need.

Given these important competing interests, there has been a great deal of litigation concerning residency obligations. Nationwide litigation over residency requirements is fairly common. See e.g. Providence Teachers, Union Local 958, AFL-CIO, AFT v. City Council of City of Providence, 888 A.2d 9848 (R. I. 2005) (Rhode Island); Hill v. City of Scranton, 411 F.3d 118 (3rd Cir. 2005) (Pennsylvania); Gusewelle v. City of Wood River, 374 F. 3d 569 (7th Cir. 2004) (Illinois); Eastman v. City of Madison, 117 Wis.2d 106 (1983) (Wisconsin); City of Newark v. PBA Local 3, 272 N. J. Super. 31 (1994)( A.D., New Jersey); New Orleans Firefighters Ass’n Local 632, AFL-CIO v. City of New Orleans, 590 So.2D 1172 (La.1991) (Louisiana); Cleveland Branch, N.A.A.C.P. v City of Parma, 263 F.3d 513 (6th Cir.2001) (Ohio); Morgan v. City of Wheeling, 205 W. Va. 34 (1999) (West Virginia); Lewis v. City of Kinston, 127 N.C.App. 150 (1997) (North Carolina).

The U S Supreme Court has addressed the constitutional issues of a residency requirement and decided that residency requirements do not violate the Due Process Clause or the Equal Protection Clause since they are not “irrational.” In McCarthy v. Philadelphia Civil Service Commission, 424 US 645 (1976), the Court specifically decided that a residency requirement for a public employee does not violate the constitutionally protected right of interstate travel. The Court stated that there is no constitutional right to be employed by the City of Philadelphia while living elsewhere.
Although residency requirements can be proper and enforceable, residency requirements are mandatory subjects of bargaining. City of Worcester and Local 495 SEIU, AFL-CIO MLC (1978). Even in cases where there are city ordinances or charters the duty to bargain should exist. Town of Lee and Lee Police Association, 10 MLC 1262 (1983). Unions are therefore faced with various legal issues. Some examples include:

1. Sudden enforcement of a “dormant” requirement
2. Procedures for measuring compliance with the requirements
3. Definition of residency
4. Exceptions to the requirements

5. Bargaining strategies

Often, the labor relations issues arise when the municipal employer takes action to enforce actively an existing residency requirement. Generally dormant residency requirements can be enforced despite a history of non enforcement or lax enforcement; such lax enforcement does not establish a clear and unequivocal intention on the part of the Employer to forever relinquish its contractual rights with respect to residency. However, individuals who moved believing that they were not required to be residents might be permitted to remain non residents on a reliance theory. Lynn Police Association and City of Lynn (L. Katz, Arbitrator).

Issues also arise over the procedures used for enforcement. Although it is generally accepted that an employer can take action to measure compliance with residency requirements there is much dispute over those mechanisms. Bargaining is also implicated when the Employer changes the procedures or imposes additional obligations. Employers may try to claim that inherent in having a residency requirement is the ability to measure compliance. However enforcement criteria has been found to be bargainable. In re Dracut School Committee 22 MLC 1013 (1995).

Even in cases where compliance procedures are allowed, such procedures cannot require an employee to sign a form consenting to “voluntary termination” for falsification of the residency certification. The employee continues to have contractual just cause protection as well as civil service protection where appropriate. As Arbitrator Roberta Golick found in a case between the City of Boston and the Boston Police Patrolmen’s Association, requiring employees to “voluntarily” terminate their employment is “abhorrent to notions of fairness” and does “violence to the contractual just cause protection.” Therefore enforcement mechanisms should be carefully considered and challenged where they overreach.

The definition of residency for purposes of municipal employee residency requirements is generally stated as “the actual principal residence of the individual, where he or she normally eats and sleeps and maintains normal personal and household effects.” City of Lynn Charter 1999. Even though such a definition may appear straight forward, the application of the residency standards is complicated. For example, there are issues in cases of dual households, where an employer’s family lives outside the city but the employee sleeps at the city residence on workdays. These situations are litigated through city compliance commissions, grievance arbitration or civil service proceedings if the employee is terminated for allegedly being in non compliance with the residency obligation. Determinations are, of course, varied and very fact specific.

Another legal issue that arises is the concept of a “hardship exception” to a residency requirement. Unions can and should take the position that there can be hardship exceptions to any residency requirement. Most often there are employees who have been grandfathered as an exception since they were employed prior to the implementation of a residency requirement. There should therefore be no legal prohibition against creating an exception for hardship as long as that exception has a reasonable basis and is based on principles of fairness.

There are also statutory reasons for a hardship exception. In McDonald v. Menino, 1997 WL 106955 (D. Mass), two disabled employees were fired for violating the Boston residency ordinance. The employees sued for discrimination under the ADA on grounds that the ordinance precluded reasonable accommodations. The City moved to dismiss for failure to state a claim. The court denied the motion finding that the City had provided no reason why the requested accommodation – an exception to the residency ordinance — harmed the City. Therefore even where a residency requirement exists there can be and are exceptions.

Some additional issues can be addressed in bargaining over residency requirements. Unions can negotiate for replacing absolute residency requirements with a requirement that an employee be a resident for a certain number of years and then be permitted to move out of the city. This creates a balance between the claimed benefits to the municipality and the ability of the employee to make choices over where to live. Another method used in bargaining to address the economic burden of residing in an expensive city is for agreements to provide loans or other financing for the purchase of homes in the community. The unions can also establish municipal mortgage programs, such as the one established in Boston by the Boston Unions Residency Coalition.

Considering the clearly emotional and personal aspects to residency requirements it is clear that the challenges will continue.

At a PERAC meeting on January 25, 2006, there was a change of direction. Instead of adopting proposed legislation as they had voted at the last meeting, they decided to adopt a regulation, a copy of which is attached. This change was based in part upon the belief of some union legislative agents that they could no longer guarantee a favorable outcome (or even reasonably control the outcome) if this issue were put into the hands of the legislature.

The regulation was submitted to the clerk of the legislature on January 31. The regulation will become the law if the legislature approves it or if the legislature does not reject it within 45 days from that submission (that would be March 17, 2006, St. Patrick’s Day). All the legislative agents expect that the legislature will allow the regulation to become effective.

This new regulation grants more extensive grandfather rights than the regulation that was originally proposed. It allows anyone to opt in to a superlongevity plan at any time during a contract that was in effect on January 25, 2006. Such a participant in the plan could then receive his superlongevity benefit for three years, even if that three years took him under a new contract, and he would be able to count the benefit in his retirement. For example, under a contract effective from July 1, 2005 through June 30, 2008, an employee could opt to begin receiving superlongevity as late as June 29, 2008. He would be able to receive superlongevity for 3 years until June 29, 2011 (assuming that the 2008-2011 contract continued to provide superlongevity) and then retire on June 30, 2011 and have his superlongevity counted in his retirement.

If a contract expired on June 30, 2005 (or before) and is continuing beyond January 25, 2006 pursuant to an evergreen clause, an employee who wants superlongevity will have to opt into the plan before that contract is replaced with a new agreement.

When the current contract is going to be replaced, we will need to modify our superlongevity plans to accommodate this regulation. I would recommend that we provide a continuation of superlongevity benefits for those who have already opted into the superlongevity plan, and then provide an alternative benefit all other employees. For an alternative benefit, I would suggest either a large longevity step at 29 or 30 years of service, or a “senior employee benefit” (a new wage step for one or more of the most senior employees in the department).

In advising members or in taking any action with respect to new contract provisions, remember that the regulation is not yet final. Although everyone expects it to become law, anything could happen up at the state house.

PEARC Regulations