Garney v. Massachusetts Teachers' Retirement System ( 2014 )

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SJC-11493
RONALD T. GARNEY vs. MASSACHUSETTS TEACHERS' RETIREMENT
SYSTEM.
Worcester. April 10, 2014. - August 18, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Retirement. Public Employment, Forfeiture of retirement
benefits. School and School Committee, Retirement
benefits.
Civil action commenced in the Superior Court Department on
January 14, 2010.
The case was heard by John S. McCann, J., on motions for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Robert G. Fabino (James H. Salvie, Special Assistant
Attorney General, with him) for the defendant.
Michael C. Donahue for the plaintiff.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
CORDY, J. This case concerns the scope of the pension
forfeiture requirement of G. L. c. 32, § 15 (4), and
specifically whether forfeiture is warranted where a teacher has
engaged in criminal activity that endangers children generally,
but does not involve the students whom he taught, the school
district for which he worked, or the use of his status as a
teacher. The plaintiff, Ronald T. Garney, a ninth grade science
teacher, was arrested in 2006 for the purchase and possession of
child pornography. Shortly after his arrest, he received notice
that he would be dismissed from his position for conduct
unbecoming a teacher and resigned prior to his dismissal. He
subsequently pleaded guilty to purchasing and possessing child
pornography. In August, 2007, when he reached retirement age,
Garney filed a retirement application with the defendant, the
Massachusetts Teachers' Retirement System (MTRS), and received
retirement benefits until 2009, when the MTRS board (board)
issued a decision concluding that Garney's benefits were
forfeited by operation of G. L. c. 32, § 15 (4), due to his
convictions.2 A District Court judge affirmed the board's
decision, and Garney petitioned for certiorari review in the
Superior Court pursuant to G. L. c. 249, § 4. A Superior Court
2
The board also concluded that Ronald T. Garney did not
have a right to a superannuation retirement allowance under
G. L. c. 32, § 10 (1), because of his convictions. This issue
was disposed of during the Superior Court proceedings and is not
before us. See note 6, infra.
3
judge reversed the decision of the District Court and vacated
the decision of the board. MTRS appealed, and we transferred
its appeal to this court on our own motion.
Although cognizant of the severity of the offenses of which
Garney was convicted, we conclude that on the specific facts of
this case, those offenses neither directly involved his position
as a teacher nor contravened a particular law applicable to that
position, and therefore did not come within the forfeiture
provision of G. L. c. 32, § 15 (4). Consequently, we affirm the
decision of the Superior Court judge allowing Garney's motion
for judgment on the pleadings and vacating the board's decision
otherwise.
Background. For over twenty years, Garney worked as a
ninth grade science teacher and served as a coach and referee at
sporting events for the Amherst-Pelham regional school district
(district).3 In November, 2004, the office of the United States
Immigration and Customs Enforcement identified Garney as a
purchaser of child pornography in the course of an investigation
into Web sites that sold such illicit material.4 It informed the
3
Garney taught in the Amherst-Pelham regional school
district from 1984 until his resignation in 2006. In the early
1970s, he worked briefly for the Hingham and Bridgewater public
schools.
4
Garney had been identified through the electronic mail (e-
mail) address and credit card numbers he submitted to the Web
4
Amherst police department, which monitored Garney's postal mail,
electronic mail (e-mail) address, and credit card activity until
November 28, 2006, when it executed a warrant to search Garney's
apartment. There, police found images of child pornography on
his home computer, as well as several hand-labeled compact discs
and video recordings, on either videotape cassettes or digital
video discs, containing child pornography.
Garney admitted to viewing child pornography since as early
as 1994, to purchasing and possessing child pornography, and to
joining several child pornography Web sites as early as 2000 or
2001. He indicated that he had renewed his membership to one
such Web site in the weeks prior to his arrest and had last
visited one of the Web sites the day prior to his arrest.
Although Garney occasionally used an e-mail address issued to
him by the Department of Elementary and Secondary Education to
access the Web sites, there were no other connections to his
position as a teacher. He accessed and stored the illicit
material on his home computer, purchased it using his own funds,
and did not possess or view material that depicted any of his
students or otherwise involve them.5
sites, and by the unique Internet Protocol (IP) address of his
computer.
5
At the time of Garney's plea, twenty-one children in the
photographs and video recordings had been identified. The
children ranged from four to fifteen years of age at the time
5
As a result of the investigation and Garney's arrest for
the purchase and possession of child pornography, the
superintendent of the school district informed Garney that the
district intended to dismiss him for conduct unbecoming a
teacher, pursuant to G. L. c. 71, § 42. Two days prior to the
effective date of his dismissal, on December 13, 2006, Garney
resigned his position.
Garney was thereafter indicted and, on December 20, 2007,
pleaded guilty to eleven counts of purchasing and possessing
child pornography, in violation of G. L. c. 272, § 29C. He was
sentenced to from two and one-half to three years in a house of
correction, followed by probation, registration as a sex
offender, and other penalties.
On August 7, 2007, after his arrest but prior to his plea
and sentencing, Garney filed a retirement application with MTRS.
His retirement became effective on August 22, 2007, at which
time he had twenty-two years and three months of retirement
credit, and he began to receive a gross monthly retirement
benefit of $2,393.78. On May 22, 2008, after his convictions,
MTRS notified Garney that it was initiating proceedings to
consider whether his convictions triggered the operation of
the material was created, and were known to be located in a
variety of jurisdictions, primarily outside the United States.
None were from the school or the school district where Garney
taught.
6
G. L. c. 32, § 15 (4), which requires forfeiture of public
employee retirement benefits "after final conviction of a
criminal offense involving violation of the laws applicable to
[the employee's] office or position."
After receiving recommended findings of fact from a hearing
officer, the board concluded on March 27, 2009, that Garney's
retirement was forfeited by operation of both G. L. c. 32,
§§ 10 (1) and 15 (4).6 The board determined that there was "a
direct link between Mr. Garney's employment and his possession
of child pornography," in part because he used an e-mail address
provided by the Department of Elementary and Secondary
Education, and that therefore he met the requirements of G. L.
c. 32, § 15 (4), warranting forfeiture.
On Garney's petition for review pursuant to G. L. c. 32,
§ 16 (3), a District Court judge affirmed the board's decision.
The judge observed that teachers occupy a position of special
trust, see Perryman v. School Comm. of Boston, 17 Mass. App. Ct.
346, 349 (1983), and that the crime Garney committed directly
contravened his duty to protect the welfare of children.
6
General Laws c. 32, § 10 (1), provides a right to a
superannuation retirement allowance for certain public employees
but prohibits that allowance where an employee "is removed or
discharged from his office or position" with "moral turpitude on
his part." This allowance is permitted, however, if the
employee "resigns or voluntarily terminates his service," as
Garney did. See id. During the subsequent Superior Court
proceedings, the parties agreed that G. L. c. 32, § 10 (1), is
inapplicable, and this ground is not raised on appeal.
7
Therefore, the requisite link between his criminal convictions
and his public position was established, such that his crimes
"involv[ed] violation of the laws applicable to his office or
position." See G. L. c. 32, § 15 (4). Relying on State Bd. of
Retirement v. Bulger, 446 Mass. 169, 175 (2006), the judge noted
that the private nature of the crime, and the fact that it did
not involve any school resources or any of Garney's students,7
did not call for a different result where the welfare of
children is a core tenet of the teaching position, and the crime
that Garney committed was directly at odds with this tenet.
Garney then petitioned the Superior Court for certiorari
pursuant to G. L. c. 249, § 4. A Superior Court judge allowed
Garney's motion for judgment on the pleadings, reversed the
decision of the District Court judge, and vacated the decision
of the board that Garney's pension was forfeited under G. L.
c. 32, § 15 (4). Relying on our decisions in Bulger, 446 Mass.
at 171, and Gaffney v. Contributory Retirement Appeal Bd., 423
Mass. 1, 4-5 (1996), the judge reasoned that, although Garney's
crimes were severe and undoubtedly warranted both criminal
7
Although the judge observed that Garney occasionally used
an e-mail address issued to him by the Department of Elementary
and Secondary Education in accessing the Web sites containing
child pornography, he otherwise noted that there was no evidence
that Garney used school funds, engaged in the activity at
school, used school computers, or "created or disseminated child
pornography or involved any students from the school district in
his illegal behavior or displayed any illicit material to them."
8
prosecution and dismissal from his position, there was not a
direct link between his convictions and his position as a
teacher, because his criminal offenses did not involve the use
of school resources and he did not use his position as a teacher
to facilitate his crime. Further, the judge rejected the
District Court judge's interpretation of Bulger, supra at 175,
179-180, and the argument of MTRS that because teachers fill a
special societal role, a conviction of possession of child
pornography necessarily violates the laws applicable to that
role. MTRS appealed, and we transferred the case from the
Appeals Court on our own motion to clarify the scope of our
decision in Bulger, supra at 178-180.
Discussion. Our review of the board's decision pursuant to
G. L. c. 249, § 4, is a limited one. See Bulger, 446 Mass. at
173. We may "correct only a substantial error of law, evidenced
by the record, which adversely affects a material right of the
plaintiff. . . . [and] may rectify only those errors of law
which have resulted in manifest injustice to the plaintiff or
which have adversely affected the real interests of the general
public . . . ." Massachusetts Bay Transp. Auth. v. Auditor of
the Commonwealth, 430 Mass. 783, 790 (2000), quoting Carney v.
Springfield, 403 Mass. 604, 605 (1988).
The parties' dispute pertains to the scope of G. L. c. 32,
§ 15 (4), which directs the forfeiture of a pension following
9
certain criminal conduct by a member of a contributory
retirement system for public employees. See Retirement Bd. of
Somerville v. Buonomo, 467 Mass. 662, 663 (2014). Section
15 (4) provides in relevant part: "In no event shall any member
after final conviction of a criminal offense involving violation
of the laws applicable to his office or position, be entitled to
receive a retirement allowance . . . ."
Where we must interpret the terms of a statute, we look "to
the intent of the Legislature ascertained from all [the
statute's] words construed by the ordinary and approved usage of
the language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished." Hanlon v. Rollins, 286 Mass.
444, 447 (1934), and cases cited. See Sullivan v. Brookline,
435 Mass. 353, 360 (2001). Because G. L. c. 32, § 15, involves
the forfeiture of property, it is penal in nature, and we must
draw its limits narrowly, so as not to exceed the scope or reach
of the penalty as contemplated by the Legislature. Bulger, 446
Mass. at 174-175. See Gaffney, 423 Mass. at 3 & n.3; Collatos
v. Boston Retirement Bd., 396 Mass. 684, 686-687 (1986) (General
Laws c. 32, § 15 "imposes a penalty on employees" and
"enforce[s] the criminal law by suspending the sword of
retirement benefits forfeiture over those employees who
otherwise might be tempted to transgress").
10
We have observed previously that "[t]he substantive
touchstone [of G. L. c. 32, § 15 (4),] intended by the General
Court is criminal activity connected with the office or
position. . . . [T]he General Court did not intend pension
forfeiture to follow as [an automatic consequence] of any and
all criminal convictions. Only those violations related to the
member's official capacity were targeted. Looking to the facts
of each case for a direct link between the criminal offense and
the member's office or position best effectuates the legislative
intent of § 15 (4)" (emphasis added). Gaffney, 423 Mass. at 4-
5. This "direct link" requirement "does not mean that the crime
itself must reference public employment or the employee's
particular position or responsibilities," Maher v. Justices of
the Quincy Div. of the Dist. Court Dep't, 67 Mass. App. Ct. 612,
616 (2006), S.C., Maher v. Retirement Bd. of Quincy, 452 Mass.
517 (2008), cert. denied, 556 U.S. 1166 (2009), or that the
crime necessarily must have been committed at or during work.
Durkin v. Boston Retirement Bd., 83 Mass. App. Ct. 116, 119
(2013). However, where the crime itself does not reference
public employment or bear a direct factual link through use of
the position's resources, there must be some direct connection
between the criminal offense and the employee's official
capacity by way of the laws directly applicable to the public
position. See Gaffney, supra at 5.
11
It is clear that the criminal offenses for which Garney was
convicted neither referenced public employment nor bore a direct
factual link to his teaching position. See G. L. c. 279, § 29C.
Garney committed his crimes outside of school, without using
school resources or otherwise using his position to facilitate
his crimes, and without involving students in his illicit
activities.8 In numerous cases, this lack of a factual link has
been fatal to the retirement board's claim that forfeiture is
warranted. See, e.g., Retirement Bd. of Maynard v. Tyler, 83
Mass. App. Ct. 109, 113 (2013) (no forfeiture where fire fighter
sexually abused boys because offenses were "personal in nature,
occurring outside the firehouse while [fire fighter] was not on
duty," and "no evidence that [fire fighter] used his position,
uniform, or equipment for the purposes of his indecent acts");
Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538, 543,
545 (2011) (no forfeiture where public library employee
convicted of possession of child pornography because offenses
occurred at home on personal computer, and employee did not use
position to facilitate crime); Herrick v. Essex Regional
Retirement Bd., 77 Mass. App. Ct. 645, 646-647, 654 (2010) (no
8
Although Garney did use an e-mail address issued by the
Department of Elementary and Secondary Education to access at
least some of the pornography Web sites, this fact does not
appear to have persuaded either the District Court judge or the
Superior Court judge that there was a sufficient factual link
between his criminal offenses and his teaching position. We
agree.
12
forfeiture where housing authority custodian convicted of
indecent assault and battery of daughter because offense not
committed on public property or against anyone who resided
there, and otherwise had no connection to custodian's official
position). See also Massachusetts Teachers' Retirement Bd. vs.
Lambert, Mass. Super. Ct., No. SUCV2005-02540B, slip op. at 1-2,
9 (Mar. 26, 2007) (Superior Court judge held forfeiture not
warranted where teacher convicted of possession of child
pornography because offense committed at home, on personal
computer, without involvement of any students or children known
to teacher). Contrast Gaffney, 423 Mass. at 4, 5 (forfeiture
where superintendent of town water and sewer department
convicted of larceny because superintendent tasked with managing
budget and stole from own department); Durkin, 83 Mass. App. Ct.
at 116-117, 119 (forfeiture where police officer convicted of
assault and battery by means of dangerous weapon for shooting
another officer with department-issued firearm while intoxicated
off duty); Maher, 67 Mass. App. Ct. at 616-617 (forfeiture where
city inspector convicted of breaking into city hall and stealing
documents from own personnel file because "multiple, direct
links" between offenses and position).
Relying on our decision in Bulger, 446 Mass. at 179-180,
MTRS argues that, despite the lack of a factual connection
between Garney's crimes and his public position, there is a
13
direct link here because the position of a teacher is one that
holds a special public trust, and Garney's criminal conduct of
possessing child pornography strikes at the "heart" of this
position by violating one of its "fundamental tenets," as
embodied in the professional standards for teachers. As a
result, MTRS contends, the board and the District Court judge
correctly concluded that forfeiture was warranted. Garney
asserts that creating a distinct forfeiture category for
teachers because of their special obligations to society would
expand G. L. c. 32, § 15 (4), "to accomplish an unexpressed
result," Bulger, supra at 175, and accordingly asks us to affirm
the Superior Court judge's determination that there was no
direct link between Garney's conduct and his position. We
conclude that the fact that Garney's position is one of special
public trust, and that criminal conduct of the type committed by
Garney violates that trust, is insufficient in and of itself to
warrant forfeiture under G. L. c. 32, § 15 (4). Rather, the
conduct must either directly involve the position or be contrary
to a central function of the position as articulated in
applicable laws, thereby creating a direct link to the position.
1. Special public trust. Undoubtedly, teachers hold a
position of special public trust; they must impart "the basic
values of our society" to students and ensure their well-being
in the process. Perryman, 17 Mass. App. Ct. at 351. See Brum
14
v. Dartmouth, 428 Mass. 684, 709 (1999) (Ireland, J.,
concurring); Dupree v. School Comm. of Boston, 15 Mass. App. Ct.
535, 538 (1983). Indeed, "conduct consistent with this special
trust is an obligation of the employment." Perryman, supra at
349. It is for this reason that teachers must demonstrate
"sound moral character" to acquire teacher certification, G. L.
c. 71, § 38G, and may be suspended or dismissed from service
where they engage in "conduct unbecoming a teacher," G. L.
c. 71, §§ 42 and 42D, or have been convicted "of a crime
involving moral turpitude" or that otherwise "discredits the
profession" or demonstrates a lack of "good moral character,"
603 Code Mass. Regs. § 7.15(8)(a)(1)(c) (2012). However, these
parameters for entering or remaining in the profession are not
the same as the standard for forfeiting a pension to which an
employee has contributed and that he or she earned over the
course of many years of public service. See Bulger, 446 Mass.
at 178-179 ("standard for pension forfeiture based on
dereliction of duty is more narrow and specific" than standard
for dismissal, and not every offense implicating norms and
expectations of position necessarily violates applicable law and
requires forfeiture); Durkin, 83 Mass. App. Ct. at 119 n.5 ("not
every off-duty illegal act qualifies" for forfeiture). See also
Gaffney, 423 Mass. at 3 & n.3 (language of G. L. c. 32,
15
§ 15 [4], must be construed narrowly because of its penal
character).
In advocating for a reading of G. L. c. 32, § 15 (4), that
requires forfeiture where a teacher's criminal conduct violates
the special public trust placed in teachers, MTRS misinterprets
Bulger, 446 Mass. at 176-180, as adopting a broader reading of
G. L. c. 32, § 15 (4), than the narrow language of the statute
permits. Our decision in Bulger, supra, did not call for
forfeiture whenever a special public trust is violated. Rather,
the court concluded that forfeiture was warranted where a clerk-
magistrate's specific criminal conduct, perjury and obstruction
of justice, was directly contrary to the most fundamental tenets
of his position, to ensure truth-telling in judicial matters and
proceedings and to uphold the integrity of the judicial system.
Id. These tenets and responsibilities were embodied in the Code
of Professional Responsibility for Clerks of the Courts, S.J.C.
Rule 3:12, as amended, 427 Mass. 1322 (1998) (code), a law
applicable to his position.9 See Bulger, supra at 176-177. See
9
In State Bd. of Retirement v. Bulger, 446 Mass. 169, 169,
171 (2006), a clerk-magistrate of the Boston Juvenile Court was
convicted of perjury and obstruction of justice in Federal court
during grand jury investigations of alleged criminal offenses
committed by his brother, James "Whitey" Bulger, and others, and
of criminal offenses related to harboring and concealing James
Bulger. In assessing whether the clerk-magistrate had violated
a law applicable to his office in engaging in this criminal
conduct, the court first identified the central functions of the
clerk-magistrate position underlying its daily tasks: to
16
also Berkwitz, petitioner, 323 Mass. 41, 47 (1948) (court rules
have force of law).
We reached a similar conclusion in a more recent case,
Buonomo, 467 Mass. at 670-671. There, we concluded that a
register of probate violated the laws applicable to his office
by committing larceny, embezzlement, and associated crimes,
because the code requires clerks and registers "to contribute to
the preservation of public confidence in the integrity,
impartiality, and independence of the courts" and to "comply
with the laws of the Commonwealth." S.J.C. Rule 3:12, Canons 1
administer oaths, thereby ensuring truth-telling; to ensure "the
effective functioning of the courts"; and to preserve the
integrity of judicial processes. See id. at 176-177, quoting
Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the
Dist. Court Dep't, 439 Mass. 352, 359 (2003).
The court observed that the Code of Professional
Responsibility for Clerks of the Courts (code), in "enunciating
the high standards to which clerks are held," forbids a broader
range of conduct than that which merits forfeiture. Bulger, 446
Mass. at 177 & n.6, 178. Among the code's requirements are that
clerk-magistrates "comply with the laws of the Commonwealth
[and] rules of the court" and "conduct personal affairs in such
a way as not to cause public disrespect for the court and the
judicial system." S.J.C. Rule 3:12, Canons 2 and 4(B), as
appearing in 407 Mass. 1301 (1990). After considering the
relationship between the code and the clerk-magistrate's crimes,
the court concluded that his specific criminal offenses
constituted an identifiable "violation of [a] law[] applicable
to [the] office or position," G. L. c. 32, § 15 (4), because
they contradicted the "fundamental tenets of the code and of his
oath of office." Bulger, supra at 179-180. His crimes were so
connected to the core function of his position in preserving the
integrity of the judicial system and ensuring truth-telling that
they could not be "separated from the nature of his particular
office." Id. at 180.
 17
and 2, as appearing in 407 Mass. 1301 (1990). His conduct, we
determined, "compromised the integrity of and public trust in
the office of register of probate" and therefore explicitly
violated the core function of his position as embodied in the
provisions of the code. See Buonomo, supra at 671.
The narrow basis for our holdings in Bulger and Buonomo
demonstrates that G. L. c. 32, § 15 (4), requires something more
specific than a violation of a special public trust in the
particular public position. The plain language of G. L. c. 32,
§ 15 (4), clearly requires a direct link between the criminal
offense and a violation of the laws applicable to the office.
Gaffney, 423 Mass. at 4-5. See Bulger, 446 Mass. at 179 (where
member is "convicted of a criminal offense that does not involve
any violation of the laws applicable to his office or position
. . . the member does not forfeit his entitlement to a
retirement allowance"). Criminal conduct that is merely
inconsistent with a concept of special public trust placed in
the position or defiant of a general professional norm
applicable to the position, but not violative of a fundamental
precept of the position embodied in a law applicable to it, may
be adequate to warrant dismissal, but it is insufficient to
justify forfeiture under G. L. c. 32, § 15 (4). See Bulger,
supra at 179-180; Gaffney, 423 Mass. at 4-5. See also Tyler, 83
18
Mass. App. Ct. at 109-110, 113; Scully, 80 Mass. App. Ct. at
543, 545; Herrick, 77 Mass. App. Ct. at 654.
Were we to hold otherwise, and conclude that where a
teacher's criminal conduct violates the special public trust
placed in teachers, forfeiture is warranted, we would permit
forfeiture nearly any time a teacher engages in criminal
conduct. This would expand the parameters of G. L. c. 32,
§ 15 (4), well beyond what the Legislature intended for it to
encompass. Cf. Tyler, 83 Mass. App. Ct. at 112 (considerations
of fire fighter's general obligation to protect the public
"while understandable, are so broad . . . as to engulf nearly
every public official, especially police officers and fire
fighters, convicted of any crime. The reach of the statute as
currently written is not so broad"). Cf. also Lambert, Mass.
Super. Ct., No. SUCV2005-02540B, slip op. at 9 (application of
G. L. c. 32, § 15 [4], cannot extend to any "violation of broad
standards of fitness to serve as a teacher" because this would
expand scope beyond that intended by Legislature, as
"[v]irtually every criminal conviction of a teacher puts in
question the soundness of his moral character and fitness for
the position"). Our reading of the statute is consistent with
19
the mandate that we interpret the statute narrowly. See Bulger,
446 Mass. at 174-175.10
2. Laws applicable to teaching position. We turn next to
whether Garney's conduct violated any laws applicable to his
position as a teacher, and conclude that it did not.
At its core, the function of a teacher is that of educator.
See Webster's Third New International Dictionary 723, 2346
(1993) (defining "educate" as "to bring up" or "to train by
formal instruction and supervised practice"; defining "teacher"
as "one that teaches or instructs"; and defining "teach" as "to
show, instruct," "to cause to know a subject," and "to impart
the knowledge of"). Teachers must give effect to the mandate
embodied in Part II, c. 5, § 2, of the Constitution of the
Commonwealth, that "the magistrates and Legislatures of this
Commonwealth . . . provide education in the public schools."
McDuffy v. Secretary of the Executive Office of Educ., 415 Mass.
545, 621 (1993). This mandate derives from the belief that an
educated people is "essential to the preservation of . . . [a]
10
As noted above, the penal character of the forfeiture
required by G. L. c. 32, § 15 (4), compels us to interpret the
statutory language narrowly. See Gaffney v. Contributory
Retirement Appeal Bd., 423 Mass. 1, 3 & n.3 (1996). If the
Legislature desires a different result, it must state so clearly
in amended legislation. See Retirement Bd. of Somerville v.
Buonomo, 467 Mass. 662, 672 (2014) (Legislature expanded
applicability of forfeiture to "broader range of circumstances"
with St. 1987, c. 679, § 47, in response to Collatos v. Boston
Retirement Bd., 396 Mass. 684, 687-688 [1986], which interpreted
predecessor statute narrowly).
20
democratic State." Id. at 561. Since 1789, teachers have been
instructed to "exert their best endeavors to impress on the
minds of children and youth committed to their care and
instruction the principles of piety and justice[,] . . . a
sacred regard for truth," and other virtues, such as humanity,
sobriety, moderation, and temperance, and "to point out to
[students] the evil tendency of the opposite vices." G. L.
c. 71, § 30. See McDuffy, supra at 594 & n.66, quoting
St. 1789, c. 19, § 4.
Private possession of child pornography by a secondary
school teacher does not directly contravene this central
function where there is no indication that this possession
compromised the safety, welfare, or learning of the children
whom he was tasked with teaching or impeded his ability to
provide adequate educational lessons to his students. As
reprehensible as Garney's crimes may be, the entirely private
nature of his conduct does not call into question the
effectiveness of the educational system of the Commonwealth.
The central function of the teaching position is buttressed
by additional, important principles, the violation of which may
be a ground for dismissal from a teaching position, see G. L.
c. 71, § 42, but whose fulfilment is not so central to the role
of the teacher in ensuring students' education that a violation
justifies forfeiture of retirement benefits. For example,
21
teachers are expected to "[u]nderstand[ ] [their] legal and
moral responsibilities" and "[u]nderstand[ ] legal and ethical
issues as they apply to responsible and acceptable use of the
Internet and other resources." See 603 Code Mass. Regs.
§ 7.08(2)(e)(1), (7) (2005).11 Even if Garney's criminal
offenses suggest a lack of understanding of these ethical
obligations and responsibilities, his personal possession of
pornography, without any known impact on his teaching or his
students, cannot be said to violate the core function of
teaching so as to create the direct link required between
conduct and office for forfeiture under G. L. c. 32, § 15 (4).
The critical alignment of crime and office through an applicable
law, as required by this narrow statute, is simply not present.12
11
Although this older version of the regulations was in
place at the time of Garney's convictions and the board's
decision, a more recent version of 603 Code Mass. Regs.
§ 7.08(2) (2014) sets forth four categories of professional
standards for teachers: curriculum, planning, and assessment;
teaching all students; family and community engagement; and
professional culture. This final category articulates the
expectation that teachers will "[p]romote[ ] the learning and
growth of all students through ethical, culturally proficient,
skilled, and collaborative practice." 603 Code Mass. Regs.
§ 7.08(2)(d).
12
This is in stark contrast to the relationship between the
criminal offenses and the core responsibilities of the position
in Bulger, 446 Mass. at 175-180. There, the clerk-magistrate's
convictions of perjury and obstruction of justice struck at the
very core of the role of the clerk-magistrate and compromised
the integrity of the judicial system; this close nexus is what
warranted forfeiture. See id. at 179-180.
 22
In this respect, a teacher's conduct that fails to reach
inside the schoolhouse doors does not satisfy the standard for
forfeiture under G. L. c. 32, § 15 (4). For this reason, MTRS's
claim that Garney's status as a mandated reporter of child abuse
provides the requisite connection for forfeiture also must fail.
As a mandated reporter, G. L. c. 119, § 21, a teacher who, "in
his [or her] professional capacity, has reasonable cause to
believe that a child is suffering physical or emotional injury
resulting from [abuse, neglect, or sexual abuse] . . . shall
immediately communicate with the [Department of Children and
Families] . . . [and] file a written report . . . detailing the
suspected abuse or neglect" or "notify the person or designated
agent in charge of [the school]." G. L. c. 119, § 51A (a). See
Matter of a Grand Jury Investigation, 437 Mass. 340, 352-353
(2002). The report filed must contain the names and addresses
of the child and the adults responsible for the child's care, as
well as the child's age, sex, extent of injuries or abuse, and
other relevant information. G. L. c. 119, § 51A (d).
Although mandated reporters may report suspected abuse or
neglect of which they become aware at any time, the duty to
report applies only to information learned in one's professional
capacity, in this case while Garney was fulfilling his teaching
and coaching responsibilities. G. L. c. 119, § 51A (a) (duty
applies when mandated reporter learns of abuse or neglect "in
23
his [or her] professional capacity"). Not only did Garney not
know the identities of the children in the pornography and
therefore did not have the requisite information, but he also
did not learn of this abuse in his professional capacity. As
Garney's criminal conduct was independent of his role as a
teacher, he was not required under the plain meaning of G. L.
c. 119, § 51A, to report this conduct.13,14
13
The mandated reporter statute was clearly intended to
ensure the immediate care and protection of identifiable
endangered children within the Commonwealth, as the statutory
scheme instructs the Department of Children and Families
(department) to investigate reports promptly and in person. See
Covell v. Department of Social Servs., 439 Mass. 766, 772
(2003); B.K. v. Department of Children & Families, 79 Mass. App.
Ct. 777, 782 (2011) (General Laws c. 119, § 51A, intended to
provide department with information to protect children's health
and safety before harm occurs); Cooney v. Department of Mental
Retardation, 52 Mass. App. Ct. 378, 382-383 (2001) (social
policy of G. L. c. 119, § 51A, is "to encourage certain
professionals to report known or suspected abuse so that those
who are vulnerable and at risk . . . may be protected").
Investigation into the well-being of the child subjects of
pornography is likely beyond the investigative and protective
functions of the department where, as here, the identities of
the majority of the children are unknown, and those who had been
identified at the time of Garney's plea and whose locations were
known were located in other, primarily foreign, jurisdictions.
14
We agree with the Massachusetts Teachers' Retirement
System that a particular public position's status as a mandated
reporter suggests that the position may hold a special public
trust. See Retirement Bd. of Maynard v. Tyler, 83 Mass. App.
Ct. 109, 114-115 (2013) (Graham, J., dissenting) (mandated
reporter status is "[i]llustrative of the special trust
conferred on firefighters and [emergency medical technicians]").
However, we have concluded that a violation of the special
public trust placed in teachers is not determinative to the
analysis under G. L. c. 32, § 15 (4).
24
In sum, we recognize that Garney's possession of child
pornography, in violation of G. L. c. 279, § 29C, was violative
of children's safety, rights, and dignity overall, and further
violative of the special public trust placed in teachers to
ensure the welfare of children in the Commonwealth. See G. L.
c. 71, § 30; St. 1997, c. 181, §§ 1, 2 (enacting G. L. c. 279,
§ 29C). Nonetheless, there is no reference to public employment
in the criminal statute under which Garney was convicted, no
direct factual link between Garney's conduct and his teaching
position, and no violation of any identifiable law applicable to
that position. Consequently, we must conclude that forfeiture
of Garney's retirement benefits under G. L. c. 32, § 51 (4), was
not warranted.
Conclusion. We affirm the decision of the Superior Court
reversing the decision of the District Court and vacating the
decision of the board.
Judgment affirmed.