Number 16. January 18, 1977

Number 16. January 18, 1977 James W. Callanan Executive Secretary Board of Retirement One Ashburton Place Boston, Massachusetts Dear Mr. Callanan: You have requested my opinion on behalf of the Board of Retirement as to the appropriate disposition of conflicting claims under chapter 32 of the General Laws. Specifically, you have informed me that a state em- ployee was criminally indicted in the United States District Court for the District of Massachusetts. In accordance with G.L. c. 30, §59, the em- ployee was suspended without pay pending the completion of the criminal proceedings. At the trial, the jury returned a guilty verdict with respect to most of the charges against the employee at which time the employee fatally shot himself in the courtroom. The employee's death occurred prior to the entry of judgment of conviction by the court. See F. R. Crim. P. 32(b) (1). Subsequently, the presiding judge allowed a motion to dismiss the case against the employee as moot. Based on the above stated facts, you have asked whether the deceased employee was eligible for retirement benefis. 1 It is my opinion that the employee was not eligible for retirement benefits at the time of his death for the following reasons. General Laws c. 30, §59 provides in pertinent part as follows: An officer or employee of the commonwealth, or of any depart- ment, board, commission, or agency thereof . . . may, during any period such officer or employee is under indictment for mis- conduct in such office or employment, ... be suspended by [the appointing authority], whether or not such appointment was sub- ject to approval in any manner . . . il have been informed that subsequent to the enactment of St. 1972, c. 74. it had been the practice of most school committees to have a physician on call — not in attendance. Moreover, I have been informed that the legislature was aware of this practice. Thus, its failure to substitute the words ' in attendance" for the word "assigned", in light of this knowledge, bolsters the conclusion that it did not intend to require personal attendance. 21 do not decide what sorts of arrangements between school committees and medical personnel satisfy the requirement that such personnel be assigned to such games. Of course, school committees may choose to have physicians or medically trained personnel in attendance at such games as a means of complying with G.L. c. 71, §54A, but such attendance is a matter for school committee judgment rather than statutory mandate. iThe significance of this determination is as follows. If the employee was eligible for retirement benefits, those benefits would be payable to his surviving spouse under G.L. c. 32, §12(2) (d). However, if he was ineligible for retirement benefits, his named beneficiaries — here, his children — are entitled to receive a refund of the employee's actual contributions to the retirement system. See G.L. c. 32, §11. 118 P.D. 12 Section 59 further provides: Any person so suspended shall not receive any compensation or salary during the period of such suspension, . . . nor shall any person who retires from service while under such suspension be entitled to any pension or retirement benefits, notwithstanding any contrary provisions of law, but all contributions paid by him into a retirement fund, if any, shall be returned to him. If the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forth- with removed, . . . At the time of the employee's death, the jury had returned a guilty verdict. Section 59 provides for removal of the suspension only after a termination of the criminal proceedings without a finding or verdict of guilty. See generally 1966 Op. A.G. p. 67. Accordingly, at the time of his death, the employee was still suspended from his position under Section 59 because the criminal proceedings had not ". . . terminated without a finding or verdict of guilty . . . ." G.L. c. 30, §59. General Laws, c. 30, §59 does not specifically provide for the disposition of retirement funds in this particular factual situation. However, in inter- preting statutes, the statute, if reasonably possible, must be construed to carry out the legislative intent. Industrial Finance Corp. v. State Tax Com- mission, Mass. Adv. Sh. (1975) 967; Commissioner of Corporations & Taxation v. Board of Assessors of Boston 324 Mass. 32 (1949). One clear purpose of Section 59 is to insure that a person found guilty of mis- conduct in the performance of his official duties, does not participate in benefits normally afforded state employees who have successfully com- pleted a career in state government. See 1966 Op. A.G. p. 55. Here, at the time of his death, the employee had been found guilty by the jury and was awaiting the formal entry of a judgment of conviction and the passing of sentence. See F. R. Crim. P. 32(b) (1). The terms "judg- ment" and "sentence" are ordinarily synonymous. Either term denotes the action of a court in a criminal case formally declaring to the accused the legal consequences of the guilt which he has confessed or of which he has been convicted. Hunter, FEDERAL TRIAL HANDBOOK §91.1 (ed. 1974). Cf. Morris v. United States, 156 F.2d 525 (9th Cir. 1946). Thus, at the time of the employee's death, a legal decision had been rendered by a jury that the employee was guilty of most of the criminal charges against him. In the situation that you have described, the proceedings terminated with a finding of guilty followed by a dismissal for reasons of mootness because of the employee's intervening death. The clear purpose of Section 59 would not be served if that statute were interpreted as requiring the payment of survivor benefits to the spouse of an employee who has been found guilty of criminal conduct simply because a formal entry of judg- ment had not occurred. Such a result would negate a specific intent of a portion of G.L. c. 30, §59 that employees whose employment terminates P.D. 12 119 while under suspension or who are found guilty of acts which constitute misconduct in office are not entitled to receive retirement benefits. See Bessette v. The Commissioner of Public Works, 348 Mass. 605, 610 (1965). See also G.L.c. 32, §10(2) (c). Accordingly, it is my opinion that at the time of his death the employee was not eligible for retirement benefits but could receive only a refund of his actual contributions to the retirement system. See G.L. c. 32, §11.- Very truly yours, FRANCIS X. BELLOTT1 Attorney General