MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY RETIREMENT BOARD & others. [Note 1]

HENNESSEY, C.J. The outcome of this appeal depends upon our interpretation of the "Perry Law," G. L. c. 30, Section 59 (1984 ed.), [Note 2] which allows for the suspension of a Commonwealth employee who is indicted for misconduct in office, provides

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that no compensation shall be paid to such an employee during the period of his suspension, and precludes the payment of retirement benefits to an employee who retires while under such suspension.

On May 24, 1984, thirty-four employees of the Massachusetts Bay Transportation Authority (MBTA), assigned to the MBTA money room, were arrested and subsequently indicted by a Suffolk County grand jury for larceny of MBTA property in excess of $100. On the date of their arrests, these employees were suspended from their jobs for dishonesty, criminal offenses not necessarily involving judicial determination, and theft. On August 24, 1984, the employees were discharged from their employment by the MBTA.

During the period of their suspension, six of these MBTA employees filed applications for retirement benefits with the Massachusetts Bay Transportation Authority Retirement Board (board). Each of these six employees had completed at least twenty-three years of service with the MBTA -- the prerequisite to early retirement under the pension agreement between Local 589 of the Amalgamated Transit Union and the employer. [Note 3] On September 13, 1984, after the six employees had been formally discharged from their employment, the board voted to grant them retirement benefits, "subject to the certified claims of the MBTA for unpaid debts."

The MBTA then commenced the present action in the Superior Court, alleging that the vote of the board was unlawful. The MBTA sought a declaration that the six employees were disqualified by G. L. c. 30, Section 59, from receiving retirement benefits, and an order restraining the board from returning the employees' retirement fund contributions until restitution had been paid to the MBTA for sums allegedly stolen. The parties submitted a statement of agreed facts, and the MBTA

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moved for summary judgment. The Superior Court judge ordered judgment for the board, declaring that the provisions of G. L. c. 30, Section 59, do not operate to disqualify employees from receiving retirement benefits after the period of their suspension has ended; that the vote of the board granting these employees retirement benefits was in full force and effect; and that the board has discretion, but is not required, to satisfy the unpaid debts of the retirees prior to paying their pension benefits. The MBTA appealed. We transferred the case here on our own motion and now affirm.

1. Retirement Benefits.

The trial judge properly determined that MBTA employees are subject to the provisions of G. L. c. 30, Section 59. This statute applies to any "officer or employee of the commonwealth" who is indicted for misconduct in office. The fact that MBTA employees are "employee[s] of the commonwealth" is beyond dispute. "The MBTA is a `body politic . . . and a political subdivision of the commonwealth.' G. L. c. 161A, Section 2 (1984 ed.). The MBTA is within the Executive Office of Transportation and Construction. G. L. c. 6A, Section 19 (1984 ed)." Appley v. Locke, 396 Mass. 540, 547 (1986). Its employees are properly considered public employees subject to G. L. c. 30, Section 59. See Massachusetts Bay Transp. Auth. v. Labor Relations Comm'n, 356 Mass. 563, 565 (1970); Dullea v. Massachusetts Bay Transp. Auth., 12 Mass. App. Ct. 82, 90 (1981). [Note 4]

We turn now to the effect of G. L. c. 30, Section 59, on the employees' retirement benefits. [Note 5] The judge ruled that the employees

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were properly granted retirement benefits, because G. L. c. 30, Section 59, operates to disqualify employees only during the period of their suspension. Because the board voted to grant the employees retirement benefits after they had been discharged, the statute did not affect their pension rights. We agree with this construction. The clear language of the statute precludes payment of retirement benefits only to those employees who retire "while under . . . . suspension." Where the language of a statute is plain, there is no room for speculation as to its meaning. Condon v. Haitsma, 325 Mass. 371, 373 (1950). See Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984). These six employees retired after they had been discharged, and not "while under . . . . suspension." [Note 6] General Laws c. 30, Section 59, is limited by its terms to the period of suspension: once the suspension has ended, [Note 7] the statute is no

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longer applicable. See Brown v. Taunton, 16 Mass. App. Ct. 614, 619 (1983) (public employee whose term of office expired during suspension not precluded by G. L. c. 268A, Section 25 [1984 ed.], from receiving retirement benefits). [Note 8] Nothing in G. L. c. 30, Section 59, precluded the board from granting the employees retirement benefits after they had been discharged. [Note 9]

This result is consistent with the obvious purpose of G. L. c. 30, Section 59. The purpose of the statute is to remedy the untenable situation which arises when a person who has been indicted for misconduct in office continues to perform his public duties while awaiting trial. Reynolds v. Commissioner of Commerce & Dev., 350 Mass. 193, 194 (1966). Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 609 (1965). The statute addresses this problem by allowing for the temporary removal of such employees from office, and by precluding the payment of compensation and the awarding of retirement benfits during the period of their suspension. The narrow focus of the statute is on the suspension of a public employee indicted for misconduct in office -- it makes no provision for the consequences of discharge or conviction.

Of course, there are laws of the Commonwealth which preclude the payment of retirement benefits to certain public employees who are discharged or convicted for misconduct in office. See G. L. c. 32, Section 10 (1) (1984 ed.) (forfeiture of retirement benefits where discharged for moral turpitude); G. L. c. 32, Section 10 (2) (c) (1984 ed.) (forfeiture of retirement

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allowance where discharged for violation of laws, rules, and regulations applicable to office or position); G. L. c. 32, Section 15 (3) (1984 ed.) (forfeiture of retirement benefits upon conviction of misappropriation of funds unless full restitution made); G. L. c. 32, Section 15 (3A) (1984 ed.) (forfeiture of retirement benefits upon conviction under G. L. c. 268A, Section 2 [1984 ed.] [public corruption], or G. L. c. 265, Section 25 [1984 ed.] [extortion]). See also Collatos v. Boston Retirement Bd., 396 Mass. 684 (1986). However, the Legislature has expressly exempted the MBTA pension system from the provisions of G. L. c. 32. See St. 1964, c. 563, Section 19. [Note 10] The fact that MBTA employees, whether through legislative oversight or inadvertence, are not subject to the forfeiture provisions of G. L. c. 32, Sections 10, 15, does not justify stretching the words of G. L. c. 30, Section 59, in order to accomplish a result not expressed or intended by that statute.

While it may be unfortunate that employees who have acted so reprehensibly should be awarded retirement benefits, the fact that these six employees were faithless to their employer, and to the public trust vested in them, does not relieve this court of its duty to be faithful to the words of the statute. It is the function of this court to construe G. L. c. 30, Section 59, as written, and an event or contingency for which no provision has been made does not justify judicial legislation. Prudential Ins. Co. v. Boston, 369 Mass. 542, 547 (1976). First Nat'l Bank v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144, 151 (1982). See Collatos, supra at 688.

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2. Restitution.

The board voted to grant the employees retirement benefits subject to "the certified claims of the MBTA for unpaid debts." [Note 11] In its subsequent action for declaratory relief, the MBTA sought an injunction restraining the board from paying over these benefits until restitution had been paid to the MBTA for sums allegedly stolen. The judge declined to grant such an injunction. We affirm.

As we have already determined, MBTA employees are not subject to G. L. c. 32. The restitution provisions of G. L. c. 32, Section 15 (1984 ed.), which require that the payment of benefits or the return of contributions be "set off" by the amount of misappropriated funds, are thus inapplicable to these six employees. In addressing the MBTA's claim to restitution, we thus must look to the collectively bargained pension agreement between the MBTA and its employees.

Article IX of the pension agreement provides that, "upon written certification to the Retirement Board by the Authority that the member or retired member has failed to make settlement with the Authority for unpaid debts, the Retirement Board may deduct from his benefit payments or return of contributions and pay to the Authority and/or the union the sum necessary to discharge such indebtedness" (emphasis added). The judge declined to grant the injunction, interpreting the pension agreement to vest the board with discretion on the question whether or not to "set off" the amounts misappropriated against the employees' retirement benefits.

We need not decide whether the board has discretion in this regard, because we determine that the MBTA's claim to restitution is premature. Under the pension agreement, the board is not empowered to withhold benefit payments until a certified claim of debt has been submitted to it by the MBTA. As of this writing, no such debt has been established. The MBTA has commenced a civil suit against the employees for conversion. This suit is now pending in the Superior Court. When

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and if this action terminates in a judgment favorable to the MBTA, a debt will have been established against one or more of the employees. At that time, the MBTA may submit a certified claim of debt to the board and request that the debt be satisfied out of the retirement benefits of the employees. Only then will the issues related to restitution be ripe for consideration, including the issue whether, in the circumstances of this case, public policy would preclude a determination by the board that it has discretion to decline to satisfy an established MBTA claim for restitution out of retirement benefits.

3. Conclusion.

Most public employees convicted of crimes in office like those shown in this case must, under the terms of G. L. c. 32, lose their retirement benefits. However, G. L. c. 32 clearly does not apply to MBTA employees. The result we reach here may not even have been contemplated by the Legislature, but it is required by the clear statutory language.

Judgment affirmed.