Scully v. Retirement Board
80 Mass. App. Ct. 538
| Mass. App. Ct. | 2011Background
- Scully was director of community services at the Beverly Public Library; the Beverly retirement board revoked his retirement for final conviction of offenses involving violation of the laws applicable to his office under G. L. c. 32, § 15(4).
- He resigned in May 2005 after police found seven images of child pornography on his home computer; the investigation involved allegations of sexual misconduct with a seventeen-year-old (Matthew).
- Scully pleaded guilty in January 2009 to two counts of possession of child pornography; other indictments were nol pros or dismissed as part of a plea bargain; there was no admission that the images were shown to Matthew.
- A board hearing in July 2009, with Scully represented, included questions about his conduct toward Matthew; Scully invoked the Fifth Amendment and did not answer. The hearing officer recommended forfeiture, the board adopted, and lower courts affirmed.
- The Supreme Judicial Court held that § 15(4) is penal and strictly construed; no direct link between the convictions and Scully’s library position was established; the board’s reliance on a link through Matthew or on the inference from Fifth Amendment silence was improper; the decision was reversed and a new judgment entered for Scully.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a direct link between the convictions and Scully’s library position under §15(4). | Scully argues there is a direct link because the convictions, and the related investigation, arose from events connected to his library position. | Board argues there is a direct link because the offenses involved his office and the investigation stemmed from his position; Matthew’s statements show a connection to the library role. | No direct link established; narrowly construed statute not satisfied. |
| Whether the board could rely on the investigation’s link to Matthew or on the Fifth Amendment silence to prove the direct link. | Scully contends there is no reliable basis to infer a library-related link from Matthew’s statements or from his refusal to answer questions. | Board relied on indirect inferences from the investigation and Matthew’s statements to assert a library link. | Adverse inference from silence insufficient; no substantial evidence of a direct link. |
| Whether the board’s reliance on non-conviction-based conduct (e.g., Matthew’s broader conduct) is permissible under a narrow construction of §15(4). | Convictions alone trigger forfeiture; non-conviction conduct cannot establish the required direct link. | Board contends related conduct and evidence support a direct link. | Not permissible; §15(4) requires a direct link through the conviction itself. |
| Whether the board’s use of grand jury transcripts and certain evidence violated statutory or evidentiary norms. | Transcripts were improperly admitted and not relied on in the analysis. | Evidence was used to support the decision. | Court did not rely on grand jury transcripts; not essential to the holding. |
Key Cases Cited
- State Bd. of Retirement v. Bulger, 446 Mass. 169 (2006) (pension forfeiture narrowly construed; requires direct link to office)
- Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1 (1996) (criminal activity linked to the office, not any conduct)
- Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645 (2010) (forfeiture narrowly construed; criminal activity not automatically triggering)
- Quintal v. Commissioner of the Dept. of Employment & Training, 418 Mass. 855 (1994) (adverse inferences require more than silence; evidence must be presented)
- Doherty v. Retirement Bd. of Medford, 425 Mass. 130 (1997) (hearsay admissible only with indicia of reliability in pension matters)