-: SJC 13208, Paul Mehan V Boston Retirement Board.
(paper rustling)
-: Okay Attorney Poser when you're ready.
Poser: May it please the court to find my glasses.
-: Sure.
(Poser laughs)
-: Your Honors, this is a case of first impression.
The issue before you is whether or not a inactive member
of the Boston retirement system, Paul Mehan,
who committed crimes commencing two years
and change after he retired,
can have his pension forfeited
under chapter 32, section 15-3.
Justice Lowy: I don't understand why you say it's
an issue of first impression since we don't have a case,
evidently, where the crime was committed
after the pension was already being collected,
but we have footnote 12 in the Somerville retirement case
with John Buonomo.
And it's pretty clear in that footnote that the statue,
chapter 32, section 15-4 pertains to any member
of a retiring system.
As matter of fact in that case,
the registered probate was no longer working
as an alderman in Somerville.
So that's a pretty strong footnote,
and the footnote also indicates
that the legislature would've said "any members in service"
instead of "any members."
So, why is it really the case of first impression?
-: Your honor, because in the Buonomo case,
which was a case I argued in front of this court in 2014,
Mr. Buonomo was an employee of the commonwealth
and the SJC in that case also said
that "member" in the context of chapter 32,
section 15-4, and this language is the same in the context
in chapter 32, section 15-3,
referred the definition of member in chapter 32,
section one, as any employee.
And the footnote you refer to deals
with the actual issue in the Buonomo case,
which I had argued successfully before the district court
and the superior court that Mr. Buonomo,
because he had no pension rights associated
with his employment with the commonwealth
as register of probate
and thus was not an active member
of the Somerville retirement system at the time
of commissioning the crimes
from which he had receiving his pension,
was exempt from 15-4,
this court found differently.
So there's a distinction between a member in service,
which is an active employee earning a pension
and a member inactive such as,
Mr. Mehan, who was retired.
-: What about section six,
Chapter 32 section six,
"only a member of service may apply
for ordinary disability."
Again, a legislation knows how to do it.
-: Absolutely, but that's a slightly different situation
because you can only retire as you point out your honor,
in ordinary disability retirement,
from active service with a disability.
There's a case called Vest,
Vest versus Boston Retirement Board,
a case that I argued in the appeals court in 1996,
that says that you cannot have a disability
that was sort of this germs of which existed while you are
an active employee,
but subsequently matured in the language
of the case after you separated from your employment.
Justice Kafker: Isn't this a weird case
to make your argument, though.
He got permanent total disability.
Did he get permanent total workers' comp?
Poser: Yes, he did Your Honor.
-: So, he lump summed meaning.
He'll never be able to work again in his life, right?
-: Your honor, he never got lump sum of his workers comp.
-: Well, bear with me for a second.
So the workers' comp he got, right,
was based on the fact
that he would never be able to work again.
-: Well, workers' compensation,
particularly total and permanent workers' compensation,
is for lack of earning capacity.
-: So he had, again,
no earning capacity that in your terminology,
but at the same time he clearly has earning capacity
because he's running a car lot
or whatever he is doing here.
So when he is collecting that workers' comp
that's a fraud on the government itself.
Poser: Which he was convicted of.
-: Right, but that's suggesting there's an interconnection
between his ability to work and his pension here.
To me, I just don't find this that difficult a case,
because again, there's a fraud going on here
that he is able to work.
So he shouldn't be able to be collecting workers' comp.
So I find that I don't have to do this sort of machination,
that this is a really difficult case
because he's engaged in fraud after he is left work,
because by collecting a permanent and total workers' comp,
he's engaged in fraud while he's working,
I mean, you can't separate the time period out.
-: Justice Kafker with great respect.
There's no proof in this case that he was engaged in fraud,
while he was earning his workers' comp.
The workers' fraud allegations begin in 2006,
Justice Kafker: But again, I keep cutting you off.
I'll stop cutting the off,
but I just wanna frame the question right.
He didn't get a temporary, you know,
workers' comp, he got the full workers' comp
for total and permanent, right?
Poser: Correct.
-: But that suggests to me
that he shouldn't have any earning capacity the rest
of his life and when he,
Poser: I don't disagree with you about that.
-: Okay, so that makes it hard
for you to win this case I think.
Poser: Well, Your Honor my analysis is,
I never said this was a difficult case.
I think it's actually a very straightforward case.
Justice Kafker: Well, I do too
but right now the other way.
-: But you have a vote and I don't.
(jury laughing)
So I wanna convince you all that my side is right.
The (indistinct) in which looking at 15-4 now,
15-3 I will address in a moment.
15-4 Is triggered in every other case except this one
by criminal activity while one was a public employee.
And except in the Buonomo case,
while the member of the system was an active employee
and used in some way,
the job, the public employment
to facilitate the commission of the crime.
Justice Lowy: So I think that that's a fair point,
obviously in the Finneran case there's this discussion
as well, factual links and facilitating,
and here the job is not being used to facilitate crime.
'cause he's not in the job.
I understand that point.
I just wanna go back to,
just care to explain to me why this isn't an easy case.
He is given workers' comp, permanent.
And now he's convicted of fraud for receiving that pension.
Every day he goes to the used car dealership.
And every time he cashes a check,
he's certifying that he's unable to work.
It's the very pension that he got from the job,
that he's convicted of taking illegally.
Poser: Your Honor, with respect,
he was not convicted of pension fraud.
He was convicted of workers' compensation fraud,
which is not the same thing.
And also his workers' compensation,
the permanent workers' compensation was awarded in 2006,
the year that he started his criminal activity.
So meaning that while he was working,
he got hurt in 2000.
From 2000 too 2006, presumably,
'cause there's no allegation to fraud prior to 2006.
That his workers' compensation,
again, not a pension was bonafide.
Justice Kafker: When does he start working
at the car place?
-: 2006, sir, that's my understanding.
-: Then that makes sense.
So from 2000 to 2006 maybe he is incapacitated,
but once he's starts working,
then the workers' comp claim.
There's some question about whether
that was properly awarded and I understand it's different
because we're having to look at it through the pension lens,
rather than the workers' comp lens.
And again, he didn't lump sum out,
he was getting ongoing payments of workers' comp.
Poser: Yes, Your Honor.
-: He was continuing to receive those,
in certain ways that's worse for you, isn't it?
'cause he's receiving the workers' comp,
even though he's working.
Does he have to make certifications when he's doing that?
I don't know how it works after when you don't lump sum.
-: Your Honor, I'm not a workers comp lawyer.
My understanding just from the record is
that every six months an affidavit was required
to be filled out saying that he was not working
and not earning and Mr. Mehan,
-: But then isn't that a real problem for you
'cause if he is filling out that affidavit,
then it isn't just a pension fraud issue,
it's a workers' comp fraud and it's related to his,
the job he had, you know?
-: Well, Your Honor, I don't think it is.
And I'm gonna give you a lawyerly answer
because this is a very.
-: This is the right place for that.
(Justice laughing)
-: So, going back to the facilitation analysis under 15-4,
which I think if you read all the cases
and I've read all the cases,
I've lost most of the cases.
So I think I understand the way the court looks
at these things.
You have to have a public job
to facilitate the commission of the crime.
Now, there's no question
that he had to be a corrections officer
and get hurt to be entitled to workers' compensation.
But there's nothing about his being a corrections officer,
which is the job which he did not hold
for over two years when the criminal activity started
that facilitated corrections officer,
guarding prisoners facilitated him lying
to the workers' comp people about his activities,
post retirement, 'cause there is no,
I mean the physics of it don't work.
You cannot facilitate your job,
-: [Chief Justice Budd] But isn't he retired because
and getting a pension because he got injured
in his getting workers' comp
and now he shouldn't be getting workers' comp
and he shouldn't be getting pension either
because he should be working.
-: Couple of points, Number one,
because of the operation of general laws,
chapter 32 section 14,
which is workers' compensation offset.
In essence, Mr. Mehan was not being paid
by the retirement board during the pendency of the case,
even though he technically had,
accidental disability retirement because his,
Judge Pose: How long is that?
How long a period would that be?
-: It would be the entire time.
Well, from up till 2003,
he got totally permanent workers comp in 2006.
But because he was a corrections officer,
and I'm not sure whether it's chapter 800
or its other forms of assault pay,
because he was a corrections officer,
he's getting assault pay.
So that's a supplement to workers' compensation.
So whether he was on total temporary, which is 60%,
he would get 40% supplement to achieve a 100%
of his pay while he was out on workers' comp.
So that never changed.
Which again is incongruous why somebody applied
for accidental disability retirement.
But if he hadn't we wouldn't be here.
Justice Lowy: But go back to chief question
if you could please because that basically,
I mean, judge McKenna's analysis,
it might sound simple and straightforward,
but I don't know why it's not right.
And I don't know why the chief's question isn't right.
-: Judge McKenna did a tinkers,
to evidence to chance analysis.
There you start with hiring as a corrections officer
and then you get hurt and
that puts you in position to get workers comp,
which then puts you in the position
to get accidental disability retirement,
which then puts you in the position
to lie about your eligibility for workers comp.
and then you get convicted of that.
That's five steps,
Is that a direct link?
And the court has never defined what a direct link means.
I don't think that's close enough.
I did not make a direct link argument,
and what that means,
because it's an elastic term,
but it's my view that 15-4 has to be triggered
by an active employee.
-: The real five links in Chief Justice Budd's question,
is that workers compensation fraud
because he was a sheriff and corrections officer.
And that there's a link right here, factual link,
between the two pretty straight forward.
That's not five links.
-: My analysis is that you have to have a public employment,
like Buonomo to use your job to commit the crime.
And Mr. Buonomo had a key to the copy machines
in the registry of the deeds and he used that key,
which he was given as register of deeds,
because he was register of deeds,
to unlock the copy machine coin boxes
and take money out of the till.
-: That absolutely nothing to do
with his job as an alderman in training.
-: Exactly and that was a successful argument,
up until the SJC decision.
And I'm not saying or suggesting that decision was wrong.
(jury laughing)
I'm just saying that the argument of Buonomo was,
you have to be an active employee,
essentially of Somerville to trigger pensioning forfeiture.
This court has told us differently
because he was an active employee of the Commonwealth
and that's the footnote,
I think it's three,
I don't recall exactly and Buonomo that says,
that member under the definitions of chapter 30, section one
is any employee.
So Buonomo was an employee of the Commonwealth.
He stole from the Commonwealth.
And what's more in that case,
you didn't find a factual connection to his job.
You found a legal connection 'cause he was a,
breach the cannons of ethics of.
-: [Chief Justice Budd] And now your client's given us
an opportunity to look at it in a different way,
which we will do thank you, sir.
We're gonna move on now to,
-: Thank you, Your Honor. -: Attorney Thomas.
(papers rustling)
-: Good morning. -: Good morning.
-: May it please the court.
My name is Natasha Thomas
and I represent the Boston retirement system in this appeal.
There are two issues before the court today.
The first is whether or not section 15- 4,
applies to Mr. Mehan as an inactive member in the system.
And the second issue is whether or not there's a direct link
between Mehan's criminal activity,
which is workers' comp fraud
and his former position as a corrections officer.
-: [Chief Justice Budd] Can I ask you to take the second one,
first, Sorry, or not.
(Chief Justice Budd laughing)
-: Okay, I could do that.
So it's our position that the issue's
before the court today,
the second issue has already been dealt with.
It's been discussed and decided here
before the court in Brunomo and Finneron
and at the appeals court with Mahar.
So section 15-4 says "in the event of a final conviction
of a criminal offense involving a violation
of the laws applicable to a member's office or position,
they forfeit their pension."
The criminal activity has to be connected
to the public employee's position.
And the courts have said
that there are two types of connections.
There's a legal link and there's a direct legal link
and there's a direct factual link.
And so we're arguing before the court today
that there's an actual factual link
between Mehan falsifying or lying about his eligibility
for workers' comp,
and his former position as a corrections officer.
Justice Lowy: So, but what I think Mr Mehan is saying is,
I dunno if you have the public trust issue,
involving administration and justice in his position
within the court system.
In Finneron you have the speaker
of the house testifying about underlying legislation
that he was intimately involved in.
And what I think the commerce is saying is
that there's nothing that the appellant did in his job
that facilitated this crime.
And indeed he didn't even have the job,
when the crime was committed, that's their position.
-: And it's our position that under Mahar,
the crime doesn't have to be connected
to the individual's job responsibilities
and under Durkin it doesn't even have to occur at work.
So Mehan, it's our position that Mehan was injured at work.
He was injured while breaking a fight between inmates,
because of that injury he applied for workers' comp.
He was awarded workers' comp because he suffered an injury,
breaking a fight amongst some of the inmates.
And so the act was created to provide financial compensation
for an employee who is incapacitated,
who's no longer able to earn money.
And so he was convicted of fraud.
He obtained this because he lied
for a period of six years about his eligibility.
He was working, he was earning income,
and yet he lied to preserve an employee benefit
that relates back to his position as a corrections officer.
So there we have the actual factual link
between his crimes and his position.
Justice Georges: Won't we always have that,
I mean, if we're always gonna be able to trace it back
to the fact that he was the correctional officer,
aren't you always gonna have a factual link?
I struggled with this
'cause I'm sure you know I was the judge on Finneran
and I got reversed 'cause I thought Mr. Poser did a good job
at that time, but the SJC told me differently,
(Poser laughing)
but it's always gonna go back to that initial domino,
that he works for the correction facility
and whatever might come downstream after he's disabled.
You're always gonna be able to go back
and say, well that's a nexus.
It's that's gonna be the nesting dolls.
It's always gonna start with the fact
that he was a corrections officer.
So how does that inform our analysis about the factual link?
If we're always gonna be able to go back
and say, whatever he does downstream,
it always goes back to the fact
that he started initially as a corrections officer.
-: Well, I respectfully disagree
that it always traces back to that position.
I think under Finneron,
the SJC reversed your decision -: Thank you.
because they argued that, (Justice Georges laughing)
This crime was extrinsically intertwined with his position.
So we've seen cases before that SJC,
where the court has ruled that there is no nexus,
it's not a strong nexus.
Garney for example was the teacher who was accused
or convicted of having child pornography.
He used the school's email to access the website,
but the court said that wasn't enough.
So it's a fact by fact analysis,
we look at each case individually.
So in the case before the court today,
I would argue that it's tied extrinsically to his crime,
He lied under the penalties of perjury
in order to preserve an employee benefit,
Finneron lied, his job as speaker
of the house did not include testifying at the hearing,
but he testified untruthfully to his job responsibilities
or his involvement in the redistricting.
And so the court said because he lied
about that it was tied.
He also lied to vindicate his position.
And it's similar here with Mehan.
He lied under the penalties of perjury
in order preserve a benefit.
What does that benefit, workers' comp,
how did he get it,
by getting injured,
breaking up a fight in a central function
of his job for the,
Justice Lowy: Your position is that,
that appellants reads the cases incorrectly in saying
that indirectly in cases,
there has to be use of the position to facilitate the crime.
That's an overstatement of that case.
-: I think it's an overstatement,
I think it's a nexus,
a connection extrinsically tied to
that public workers' position and the crime.
Mahar's an example of that,
He was chief of inspection,
His job was to oversee plumbings systems and permits.
And he broke into the personnel office
in order to remove unfavorable documents from his file.
That had nothing to do with his job responsibilities.
Justice Kefkar: Well I wrote Mahar that's,
and it does have to do with his job
'cause he was covering up his bad personnel reviews, right.
And that's why he broke to the,
I mean he was trying to get rid of negative evaluations
of himself, right.
Natasha: Right.
-: I don't think, that seems quite different.
That's clearly connected to his work performance.
Natasha: Right, and the workers' comp act was created
to compensate injured employees are impaired, right.
Who have no more earning capacity.
And so he lied in order to maintain well.
-: I have no trouble thinking that the workers' comp,
when he lies about being totally and permanently disabled
for workers' comp and he's working,
that seems to be a nexus,
but it's not, it's a little different than the use
of his position.
The way Justice Lowy just phrase it,
the use of his position,
he's not using his position the same way,
Mahar was using his position
or Finneron may have been using his position.
Where he is actually there and engaged in the task.
I don't know, see the difference a little bit.
Natasha: I'd still argue is a connection because,
but for his position as a corrections offer officer,
but for him performing the essential functions of his job,
he wouldn't have received this benefit
and he lied in order to maintain an employee benefit
that he wasn't entitled to.
Justice Lowy: That argument like
with Justice Kafker resonates with me too, It does,
but it's different than the appellants take on the case,
which is that you have to use your job,
your current job to facilitate the crime.
That's their take on the case, I guess,
and you disagree with that,
You use Finneron as an example,
he's not using his job to facilitate anything.
He did the crime.
He's just testifying about something
that he is intimately involved in that is part of his job.
Natasha: And that's correct, yes.
-: Can you talk about,
could you talk about 15-3.
Natasha: So, 15-3, 15-4 is a forfeiture
and 15-3 is restitution.
And so the board can suspend a public employees pension
until they've paid full restitution.
And so under 15-4 they forfeit it.
But under 15-3 a full restitution is paid,
then the monthly amount allowance would continue.
Justice Georges: So counsel we took you out of order.
So back to that first issue.
Does it matter that he had been retired either
for whatever, for disability purposes,
does it matter in our analysis,
whether they are a current employee
or in this case like Mr. Mehan that he's now on disability,
and had been on disability when this fraud was perpetrated?
-: It's my argument that it doesn't matter for two reasons.
The first reason is under Brunomo,
this court has already established that 15-4 applies
to both an inactive member and an active member.
So it applies to Mr. Mehan.
And the second thing is that under section 15,
there is no statute of limitations.
Under fidelity, a pension forfeiture occurs
by operation of law, it's mandatory.
It occurs by operation of law
and the board instituting a hearing under section 15,
just formalizes something that already happens automatically
by operation of law.
So that's our position that it applies to him,
even as an inactive member
and there's no statute of limitations.
Although it took a number of years for the AG's office
in the Suffolk County Sheriff's department
to discover the fraud it's still applies to him.
Justice Lowy: So that footnote 12 in Bruonomo,
may be dispositive here in you favor,
but do you agree this is the first case
that we've had where the crime has been
after the person has completely left public service.
(keyboard typing)
-: Can you repeat that question.
-: Sure, so the arguing you just made,
particularly about Buonomo and footnote twelves
and Justice Steven's comment,
they could have just said member and service,
might well be right.
And your second point about no statute limitations,
might well be right.
But do you agree with the appellant
that this is the first case
that we have had where the crime was committed
after the person had finished the public employment?
They were no longer a public employee.
-: I don't necessarily agree because my position is
that there's a connection.
And so that's what matters here,
whether or not it goes back to his public employment
and not so much the fact that he was inactive at the time.
-: It it's a compelling argument,
I'm just trying to get for purposes of this case,
whether this is the first case we will have had,
where we are saying that we're going
to apply 15-4 forfeiture,
where the person's no longer a public employee.
Natasha: I would say it's not a case to first impression.
-: [Justice Wendlant] Can I ask you just
to re-articulate the direct factual link?
So you're saying,
but for the fact that he was a corrections officer,
he would not have gotten injured and he got injured,
therefore was entitled to workers' comp.
And then two years later when he lied about it,
that's enough of a nexus is that the argument.
Natasha: The argument is ,yes.
He was injured at work because of his injury
that occurred at work,
he applied for workers' comp,
he received that benefit and it goes back
to his public employment.
The record's not really clear just to clarify,
he received the ADR, section seven,
in 2005, but it was applied retroactively.
-: [Justice Wendlant] Retroactive, right yeah.
-: And the record shows
that he purchased Shamrock Motors in 2005.
-: Yeah, but he's not convicted for the 2006,
-: Until 2006, was when he's awarded 34A,
-: You're not relying on his re-certification,
whenever he gets the workers' compensation
that he's not able to work.
That's not what you're relying on for that link.
Natasha: Can you rephrase that?
-: I mean, so this goes back to Justice Kafker's point,
he didn't receive a lump sum at some point,
he has to do some sort of certification.
Every time he collects workers' comp
that he in fact cannot work.
Natasha: Yes, every six months, he has to certify
that he is not working or earning any income.
-: [Justice Wendlant] And that is not the direct factual link
that you're are relying on.
You are relying on the fact that he was injury,
put him in a position to then two years later lie.
-: Yes, it goes back to his position
as a corrections officer.
Justice Kafker: Well but are you really conceding
that point 'cause they're interrelated.
He's defrauding you at,
he's, as Chief Justice Budd said,
he should be working. -: Right.
-: He's not working.
He's lying that he has no earning capacity.
He's affirmatively asserting this every six months.
Do you really want to cut off part of that as part
of your factual link or are they all interrelated?
Natasha: I'm arguing that under Finneron,
they're all extrinsically intertwined that they're related.
-: [Chief Justice Budd] Okay, any other questions?
Thank you very much.
-: Thank you. -: Thank you.