The following are non-verbatim excerpts of a second Amicus Curiae (Friend of the Court) brief I filed on May 24 in the case of Weymouth’s first-ever mayor scheming to get a greater pension than warranted.
“In the instant case of Madden v. Public Employees Retirement Administration Commission and the Weymouth Retirement Board, a number of legal questions have not been addressed.
PERAC is relying on settled case law, Psyz v. Contributory Ret. Appeal Bd., 403 Mass. 514, 518 (1988) to deny Madden’s Group 4 pension, and while PERAC’s argument has merit, PERAC needs to look beyond the confines of Pysz, supra, for the absolute reasons his Group 4 pension should be denied and why charges should be brought against all parties involved in this attempt to defraud the state pension system.
This case centers on whether Madden, a tenured civil servant who served as a firefighter and as fire chief in Weymouth had an ‘absolute right’ under MGL c. 31, § 37, (2) to return to the position of fire chief upon the completion of his two terms as Weymouth’s mayor.
Chapter 31, § 37, (2) states: Any person elected by the people to the office of mayor who is a permanent employee in a civil service position shall, upon his written request made to the appointing authority, be granted a leave of absence without pay from his civil service position for all or such portion of the term for which he was elected and shall not, as a result of such election, be suspended or discharged or suffer any loss of rights under the civil service law and rules.
Chapter 31, § 37, (4) states: Any person who has been granted a leave of absence or an extension thereof pursuant to this section shall be reinstated at the end of the period for which the leave was granted and may be reinstated earlier. If the appointing authority, upon demand of such person, shall fail to reinstate him to his civil service position, such person may request a hearing before the administrator. The administrator shall proceed forthwith to hold such a hearing and to render his decision.
Based on c. 31, § 37, (2), Madden presumes an ‘absolute right’ to return to his previous position, which, on its face, does give Madden the right. But his argument is flawed because, while on protected leave, he vacated his position as fire chief when he, as the appointing authority of the town of Weymouth, appointed current Chief Robert Leary as permanent fire chief of Weymouth in 2002; not as an “acting chief,” which would have been required in order to hold his position open.
Additionally, prior to the appointment of Leary in 2002, Madden appointed Charles Deacon permanent fire chief nine months after he assumed office as mayor of Weymouth in 2000.
Nowhere in c. 31 does it consider a situation where a permanent civil service employee takes leave of absence and becomes the appointing authority; who then appoints a permanent replacement to take over his former position. By all reasonable standards, it would appear that Madden vacated his “right” to be reinstated to his former position as fire chief.
Furthermore, c. 31, § 37, (2) is unconstitutional because it violates the Equal Rights Clause in the Fourteenth Amendment of the US Constitution by creating a ‘special class’ of people who may have benefits that other people are denied, e. g., the ‘right’ to return to a leaved position.
It would appear that Madden, realizing his mistake in appointing both Deacon and Leary to the position of permanent fire chief, a Group 4 position from which he wished to retire because of its higher pension benefit rate, did all that he could to try to undo what came to light as he was about to depart the office of mayor at the end of his second term.
It also appears that Madden and some of his friends and associates who are members of the WRB; some of whom who were appointed by him, may have consciously overlooked the fact that Madden had vacated his right to return as fire chief in order to provide for him to be able to retire at the higher Group 4 benefit rate.
One must also consider that Weymouth’s charter was violated in the process, creating, among other things, a situation whereby a ‘joint enterprise’ was initiated to ostensibly prevent Madden from filing suit against the town to restore his alleged ‘absolute rights’ and allow him to return to the Group 4 position, albeit ‘temporarily’, and never to perform the duties of the position, all in order to attain a higher pension benefit. When taken together with all of the facts, it would appear that a criminal act had been premeditated and carried out.
George Lane, Jr., who was appointed Solicitor by Madden, engaged the services of Michael Curran, who was the original author of the Weymouth charter; as well as a sub-contract employee of Lane; both of whose remunerations come from the Weymouth treasury, to provide an opinion as to how the situation of reappointing Madden to fire chief should be handled.
Based on Curran’s written opinion, Madden appointed Lane acting mayor; incorrectly quoting the provisions of § 3-5 of the Weymouth charter related to temporary appointments. An acting mayor’s powers are controlled by § 3-8 of the Charter.
In § 3-1, (a), of the charter, it states that a mayor shall be a voter of the town in order to qualify to hold the office. Lane is not a voter of Weymouth and is not qualified to serve or ‘act’ as mayor if one were to correctly interpret the absolute intent of the charter; which is clear: one must live and vote in Weymouth in order to be mayor.
The charter, at § 3-1, (f), also prohibits a mayor from holding two positions in the town ‘for which a salary or other emolument is payable from the town treasury.’ Lane did not step down as Solicitor in order to perform his alleged ‘ministerial’ duty as ‘acting mayor’. He in fact signed a document to the Commonwealth’s Human Resources Division as ‘Town Solicitor / Acting Mayor.’
The Solicitor is alleged to be an authority on the charter; but with Lane’s actions in all of this, it calls into question his competence in the document that is supposed to be the compact between the government and the people of Weymouth. To have to have someone render an ‘expert’ outside opinion is further testament to his failure, or perhaps his contrivance, to correctly administer the charter for the residents of Weymouth.
With the backing of the ‘outside opinion’ from Curran, who is employed on occasion by Lane, and who is remunerated from the Weymouth treasury either directly or indirectly through Lane, a plan was put into motion to attempt a fraud on the state employee pension system to benefit Madden at the expense of other, honest retirees who played by all the rules.
When Chief Leary took note of the plot to bump him from his protected position prior to the time Madden left office as mayor in January, 2008, he threatened suit, and rightly so. He had been chief for five years since his appointment in 2002; four years beyond the required probationary period.
In order to mollify both Madden and Leary, the mayor-elect was engaged, most likely under the advice of Lane, Madden’s former Solicitor and someone that the mayor-elect would afterward retain as her own Solicitor, to join the subterfuge, rather than let Madden avail himself of the provisions in c. 31, § 37, (4) to file a proper grievance with the Civil Service Administrator to be retuned to his alleged ‘rightful place’ as fire chief of Weymouth. In doing so, Susan Kay, then-mayor-elect who became mayor, immediately violated her oath of office to properly administer the rule of law that she had been sworn to uphold.
In passing this duplicity on to PERAC and the Contributory Retirement Appeals Board to decide, Kay abrogated her duties and responsibilities to the citizens of Weymouth and to the laws of the Commonwealth, and along with many others became a major player in an attempt to defraud the state employee pension system. This entire episode borders on criminal conspiracy, which DALA Magistrate Sarah H. Luick, Esq., concluded in her order of December 10, 2010, ‘a joint enterprise’; which is a rather mild description of what transpired.
Madden had available to him established procedures under c. 31, § 37, (4) to appeal any lack of reinstatement. Madden failed to respect them or the law in general: showing this entire episode to be a gross deception on his part; in concert with some of the aforementioned parties. In doing so he has brought great dishonor on himself and, what’s more, to the citizens of Weymouth who elected him to be their first mayor.
In closing, many feel that were Madden to continue with what some strongly believe is an attempted fraud, that he should not only be denied a Group 4 benefit, but that he should be stripped of all benefits, and that his contributions into the system over the years, minus what it has cost various Commonwealth agencies to hear and properly adjudicate this abominable case, be returned to him to invest elsewhere.
And, if said Commonwealth agencies were, like me, to feel that an attempt to cheat the public employee pension system did actually take place, that said agencies would forward all the information, findings of fact and magisterial conclusions to the office of the Attorney General to pursue criminal prosecution against all the parties involved.”
And thus, kiddies, the Weymouth worm continues to turn…
***© Copyright 2011 , All rights Reserved. Written For: Tinytown Unleashed