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HOUSE DOCKET, NO. 9 FILED ON: 10/21/2022
HOUSE . . . . . . . . . . . . . . . No. 9
So much of the recommendations of the Public Employee Retirement Administration
Commission (House, No. 8) as relates to pension forfeiture. Public Service.
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act relative to pension forfeiture.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Paragraph (m) of subdivision 1 of section 5 of chapter 32 of the general
2laws, as appearing in the 2020 Official Edition, is hereby amended in line 76 by adding after the
3word "contrary", the following: "except as provided in section 15 of this chapter,".
4 SECTION 2. Section 10 of chapter 32 of the general laws, as appearing in the 2020
5Official Edition, is hereby amended by striking the phrase "without moral turpitude on his part"
6in lines 6, 9, 84 and 126.
7 SECTION 3. Section 15 of chapter 32 of the general laws is hereby amended by striking
8everything after the title and inserting in place thereof the following new section 15.
9 Section 15.
10 (1) Initiation of Forfeiture Proceedings. Proceedings under this section may be initiated
11by the board or the commission. The board shall notify the member by certified mail when
12proceedings are initiated. If the member refuses the delivery of the mail, it shall be deemed to 2 of 8
13have been received. Unless otherwise agreed to by the parties, a hearing shall be held no less
14than ten days nor more than ninety days after the member has received notification. The board
15shall conduct the hearing pursuant to the provisions of 840 CMR 10.12. The board shall prepare
16and file with its clerk or secretary a certificate containing its findings and decision, copies of
17which shall be sent to the proper parties within fifteen days after completion of such hearing.
18 (2) Forfeiture of a retirement allowance upon conviction. Upon final conviction of a
19felony criminal offense involving violation of the laws applicable to a member's office or
20position or arising out of and in the course of their employment, a member shall be subject to the
21forfeiture provisions of this section. A retirement board, upon notification of such conviction of a
22member, must hold a hearing to determine whether the crimes for which a member was
23convicted involved the laws applicable to the member's office or position or if said criminal
24offenses were committed while the member was in the course of his or her employment, the total
25value of the member's potential retirement benefits, and the amount of said benefits which shall
26be forfeited. For the purposes of this section, 'criminal offense involving violation of the laws
27applicable to a member's office or position,' shall also include, but not be limited to, in the case
28of a member whose primary job responsibilities involve contact with children or any member of
29the Massachusetts Teachers' Retirement System or a teacher who is a member of the Boston
30Retirement System, a conviction for knowing purchase or possession of visual material of a child
31depicted in sexual conduct under section 29C of chapter 272 of the general laws, or a conviction
32of a sex offense involving a child as defined in section 178C of chapter 6 of the general laws
33whom the member has contact with as part of his or her official duties, or a conviction of any
34other sex offense or sexually violent offense, as those terms are defined in said section 178C, in 3 of 8
35which the victim was any person under the age of 18 whom the member had contact with as part
36of his or her official duties.
37 (3) Forfeiture amount. Any member with ten or more years of creditable service on the
38date of the offense who is subject to forfeiture under the foregoing paragraph (2) shall forfeit
39their retirement allowance as determined by the board. A member's allowance shall be reduced
40by either one-third, two-thirds, to a minimum allowance or their right to an allowance shall be
41forfeited entirely. Such minimum allowance shall be equal to the amount a member would
42receive in group 1 having ten years of creditable service and at the minimum age for a group 1
43employee; provided that in no event shall a member whose pension has been reduced to the
44minimum allowance be eligible for any retirement benefit prior to reaching the minimum age for
45a group 1 employee; and provided further that, except in cases of total forfeiture, a reduced
46retirement allowance shall not be reduced below the amount of the annual annuity portion. Such
47reduced allowance shall be payable for the life of the member; provided that, if the member
48retires having elected option (c) the beneficiary shall receive, upon the death of the member, the
49option (c) benefit as if forfeiture had not occurred, based on the age and actual creditable service
50at the time of the member's retirement, if the board determines that the beneficiary (i) had no role
51in the illegal conduct for which the member was convicted, (ii) did not have knowledge of the
52illegal conduct, and (iii) did not commit nor conspire to commit the murder or voluntary
53manslaughter of the member upon whom the retirement allowance is based. In the event the
54entire allowance is forfeited, the member shall not be entitled to receive a retirement allowance
55under the provisions of section one to 28, nor shall any beneficiary be entitled to receive a
56retirement allowance under such provisions on account of such member. Further, in the event of
57total forfeiture, unless otherwise prohibited by law, a member or beneficiary shall receive only a 4 of 8
58return of their accumulated total deductions; provided, however, that the rate of regular interest
59for the purpose of calculating accumulated total deductions shall be zero. Any retirement
60allowance received by a member up to the decision of total forfeiture by a board shall be offset
61against and reduce the accumulated total deductions otherwise due the member. In determining
62the amount of the forfeiture the board must consider and make findings of fact relative to the
63following factors:
64 (1) the severity of the crime for which the member was convicted including the
65sentence imposed as well as the maximum sentence provided for by law;
66 (2)the amount of monetary loss suffered by the state, municipality, political
67subdivision, or by any other person as a result of the crime for which the member was convicted
68or the financial gain realized by the member;
69 (3)the degree of public trust reposed in the member by virtue of the member's office
70or position and the degree to which it was violated;
71 (4)if the crime was part of a fraudulent scheme against the state or political
72subdivision, the role of the member in the fraudulent scheme;
73 (5)any recommendation by the prosecuting attorney or their office to the degree of
74forfeiture; provided further that, any decision by a board to entirely forfeit a member's benefit
75shall be consistent with the recommendation of the prosecuting attorney or their office; and
76 (6)any such other factors as, in the judgment of the board, justice may require.
77 Any member who has had their retirement allowance forfeited entirely or has had a
78portion of their retirement allowance forfeited under this paragraph shall be ineligible to become 5 of 8
79a member of a different retirement system and is also prohibited from increasing their allowance
80from the forfeited amount except by cost of living increases granted pursuant to sections 102 and
81103.
82 Any member who has had their retirement allowance forfeited entirely or has had a
83portion of their retirement allowance forfeited under this paragraph shall cease to be an active
84member of the retirement system and shall be ineligible for membership in any retirement
85system.
86 (4) Forfeiture for members having less than ten years of creditable service. Any member,
87having less than ten years of creditable service on the date the offense is committed, who upon
88conviction is subject to the provisions of this section shall forfeit all rights to a retirement
89allowance based upon any creditable service prior to and after the date of the offense and shall
90receive a return of his accumulated total deductions; provided, however, that the rate of regular
91interest for the purpose of calculating accumulated total deductions shall be zero. The member
92shall thereupon cease to be a member in the retirement system and shall be ineligible to become
93a member of any retirement system.
94 (5) Notification. If a current employer, last employer, the attorney general or a district
95attorney becomes aware of a final conviction of a member of a retirement system under
96circumstances which may require forfeiture of the member's rights to a pension, or retirement
97allowance pursuant to this chapter, section 59 of chapter 30 or section 25 of chapter 268A, they
98shall immediately notify the retirement board and the commission of such conviction.
99 (6) Repayment of allowance. If a member's final conviction of an offense results in a
100forfeiture of rights under this chapter, the member shall forfeit, and the board shall require the 6 of 8
101member to repay all benefits in excess of the allowable amount received after the date of the
102offense of which the member was convicted. Following a member's conviction and partial
103forfeiture, the member's retirement allowance will be reduced, upon such terms and conditions as
104the board may determine, until all excess payment amounts are recovered.
105 (7) Misreported Salary. In no event shall any member be entitled to receive a retirement
106allowance under this chapter, which is based upon a salary that was intentionally concealed from
107or intentionally misreported to the commonwealth, or any political subdivision, district or
108authority of the commonwealth. If a member intentionally concealed compensation from or
109intentionally misreported compensation to an entity to which the member was required to report
110the compensation, even if the reporting was not required for purposes of calculating the
111member's retirement allowance, the member's retirement allowance shall be based only upon the
112regular compensation actually reported to that entity or the amount reported to the board,
113whichever is lower. Unless otherwise prohibited by law, such member shall receive a return of
114any accumulated total deductions paid on amounts in excess of the compensation actually
115reported, but no interest shall be payable on the accumulated deductions returned to the member.
116 The board shall notify the commission of any proceedings commenced pursuant to this
117subdivision and shall provide any and all documents relating to said proceedings upon request of
118the commission. Notwithstanding the waiver provisions of paragraph (a) of subdivision 3 of
119section 21 of chapter 32 of the general laws any calculations performed pursuant to this section
120will be submitted to the commission for approval.
121 (8) Appeal of Forfeiture. Any person who is aggrieved by a decision made pursuant to
122this section regarding the forfeiture of all or any portion of a member's retirement allowance 7 of 8
123under this section may, within thirty days after the certification of the decision bring a petition in
124the superior court. This action shall be commenced in the superior court in which a member was
125convicted, or in Suffolk Superior Court, or in the Massachusetts Superior Court covering the
126geographic area in which a member resides. The court shall review all legal issues under a de
127novo standard, but may base its determination either on the administrative record below, or may,
128in its discretion, request additional evidence.
129 (9) Restitution. If a member has been found to have misappropriated funds or property of
130their employer, restitution may be made using all or a portion of the total deductions of the
131member on account with a retirement system. If restitution is made using the accumulated total
132deductions of the member on account with a retirement system then the annuity portion of any
133retirement allowance will be reduced when a retirement allowance becomes effective or when a
134retirement allowance is resumed, as the case may be. The pension portion of the retirement
135allowance shall remain unchanged from the allowance determined using the accumulated total
136deductions in the member's account prior to restitution.
137 SECTION 4. Subdivision 3 of section 16 of said chapter 32 is hereby amended in line 63
138by striking the phrase: "or any member who is aggrieved by any action taken or decision of a
139board or the public employee retirement administration commission rendered with reference to
140his dereliction of duty as set forth in section 15,".
141 SECTION 5. Subdivision 3 of section 16 of said chapter 32 is hereby amended in line
142113 by adding after the word "rendered": , except decisions made or actions taken pursuant to
143section 15 of this chapter,. 8 of 8
144 SECTION 6. Section 105 of said chapter 32 is hereby amended by adding the following
145paragraph;
146 (d) Any member having had their retirement allowance forfeited entirely or having had
147any portion of their retirement allowance forfeited pursuant to section 15 of this chapter shall be
148ineligible for reinstatement to service under the provisions of this section.
149 SECTION 7. Paragraph (b) of subdivision (2) of section (8) of chapter 32 is hereby
150amended by inserting in line 105 after the word "compensation": ; provided, however, that any
151member who has had their retirement allowance forfeited entirely or had any portion of their
152retirement allowance forfeited pursuant to section 15 shall not become an active member of the
153retirement system upon reinstatement but shall contribute to the deferred compensation fund
154established by section 64D of chapter 29.