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MA SJC Rejects State Pension Forfeiture for Two Police Officers Convicted of Crimes

Jouret LLC Jan. 18, 2019

In a decision issued January 18, 2018, the Massachusetts Supreme Judicial Court rejected the Massachusetts Appeals Court’s decisions in two cases involving pension forfeiture under G. L. c. 32, § 15 (4), which provides that no member of a public employee retirement system shall be entitled to a retirement allowance after conviction of a criminal offense involving a violation of the laws applicable to his or her office or position. The consolidated cases are ESSEX REGIONAL RETIREMENT BOARD vs. JOHN SWALLOW & others. and STATE BOARD OF RETIREMENT vs. BRIAN O'HARE & others, Nos. SJC-12458 SJC-12511.

In the cases, two officers were separately convicted of crimes related to the discharge of a personal firearm and using the Internet to entice a person under eighteen years of age to engage in unlawful sexual activity. The SJC held that “While the officers' actions were clear and serious violations of the law, it does not automatically follow that they are subject to loss of their retirement allowance by virtue of either their heightened obligation to uphold the law or their special position of trust in our society.” Instead, “ where there are neither factual links nor legal links between the officers' positions and their convictions, forfeiture of their pension allowances is not legally tenable.”