Legislation that would empower the city Retirement Board and Board of Public Safety to revoke the pensions of city employees for dishonorable service that sailed through the council on first passage has sparked a firestorm that could derail the bill or postpone action.
The measure introduced by Ward 4 Councilman Joseph Solomon is based on provisions used in Providence and was slated to come before the City Council for second passage last night. But last week Al Gemma, who introduced the existing regulations to revoke the pensions of those who served as city employees or officials when he was a council member in 1995, mounted a campaign to stop Solomon’s amendment that he claims would strip the rights of those accused of dishonorable service. The measure has also raised concerns with City Personnel Director Oscar Shelton who said, “I think the attempt is OK, but I’m not sure the methodology is as clear as it should be.” He said the due process afforded by the legislation is “not clear” and that “standards are vague.” He believes the measure wouldn’t stand up to a court challenge.
Shelton also fears the provision would be used indiscriminately by management to punish employees and officials without due process of the law.
That’s not the way Solomon sees it.
“I feel it is a good thing,” he said. “It is not going to harm anyone unless they have caused harm…I don’t think anyone has to worry about a thing unless they did something wrong.”
Solomon sees his provision, which is modeled after Providence, tweaks the existing law. He says, as it now stands, an employee or city official charged with a crime, but is able to get charges dropped as part of plea bargain would be able to keep their pension. They could also lose their pension based on a preponderance of evidence even should they not face criminal charges and in instances where they defrauded the city, the city would have the right to recover its losses by attaching pension payments made by the employee or official.
He said his intent is to “close the gate” before the horse leaves the yard.
“Anyone who acts in a dishonorable way should not get their pension,” said Solomon.
Jean Bouchard, president of Local 1651 of Council 94, AFSCME, that represents city workers is opposed to the ordinance. She is hopeful the council will delay second passage to further discuss the measure.
“They aren’t attorneys,” she said of the Retirement Board, “and they would be finding a person guilty without going through the system.”
“This is judge, jury and executioner,” Gemma says of Solomon’s amendment. He cites those provisions that say appeals shall be decided by the Superior Court without a jury and that the court “shall not substitute its judgment for that of the board as to the weight of evidence on questions of fact.”
Further, he said, those accused of dishonorable service and loss of their pensions only have 20 days to appeal. He called the right of have a trial by a jury of peers a basic American right.
“We’re talking about someone’s life, not a hamburger,” he said.
Gemma can’t imagine how the ordinance gained first passage.
“He [Solomon] either drugged the council or they don’t know what they’re doing. This is about protecting the innocent.”
The existing two-page law defines crime as it relates to public employment and then outlines a procedure to be followed by the Retirement Board in the case of municipal employees and the Board of Public Safety for police and fire. That process starts with a hearing and, should the city pursue action, requires it to initiate civil action in the Superior Court for the revocation or reduction of a retirement allowance, annuity or other benefit. The action, therefore, is left to the court.
Since being enacted, the law has not been used. While employees have been dismissed for dishonorable service, the pension provision only applies once they are vested for a pension at ten years.
In Solomon’s bill, the city revokes the benefits and the court is the avenue for appeal. As defined in the law, the court has the power to affirm the city’s decision, remand the case for further proceedings or reverse the decision “if the substantial rights of the employee have been prejudiced.”
Solomon said the measure “improves” what Gemma introduced 16 years ago and that there is nothing personal about his action.
“If it ain’t broke don’t fix it,” answers Gemma.
In a memo addressed to members of the City Council, Shelton writes, “Taking the adjudication out of the hands of the courts and placing it with the Retirement Board without clear and specific guidance provided for by Ordinance, runs the risk of having decisions to revoke or reduce pensions overturned by the Courts. In my opinion, without such guidance, the Retirement Board does not have the expertise necessary to evaluate evidence or to analyze and weigh witness testimony, or to provide adequate due process under this proposed legislation.”