NARRAGANSETT – On the heels of a Rhode Island Superior Court decision that found bias and a lack of procedure in the pension board’s recent revocation of a former Narragansett police officer’s pension, the body is strongly considering changes that will address issues the court identified. Specifically, the board is looking to hire a third-party attorney in cases when pension decisions are appealed and is considering petitioning for a change to the town’s current ordinance around pension revocation, which the court ruled as too vague.
“I do think that obviously going forward, we’ll have to have procedures in place and we have to consult with an attorney,” said Narragansett Pension Board Chair Michael Stone. “One of the things that came up was that we probably should have had our own attorney because if the town’s lawyer is going to be presenting the case to revoke the pension, as an impartial board we have to have an impartial judicator as well.”
In June, Rhode Island Superior Court Judge Sarah Taft-Carter found multiple shortcomings in the board’s procedure in revoking the pension of former Narragansett Police Officer Matthew Riley. In March of last year, Riley, 53, was convicted of one count of transferring obscene material to a minor over the internet in federal court after pleading guilty to the charge. He was sentenced to serve 21 months, the maximum penalty, by U.S. District Court Judge William E. Smith and is due to be released in September. Riley, who served on the Narragansett Police Department (NPD) for 28 years, posed as a 29-year-old physical therapist from Boston, and sent sexually explicit images and messages to a 15-year-old in Nebraska throughout 2016.
In August of last year, in a Narragansett Pension Board meeting that Taft-Carter described as “chaotic,” the body voted 5-1 to revoke Riley’s pension, which equates to about $55,000 from the town annually. In her June 10 ruling, Taft-Carter found that the board was biased in its deliberations, with town solicitor Andrew Berg serving dual roles in representing the town’s interests and advising the pension board of procedure.
“Here, the Pension Board did not afford Mr. Riley with an orderly and impartial hearing,” wrote Taft-Carter. “There was a complete lack of procedure and protocol. The record of the pension revocation hearing shows a chaotic and unorganized event. Furthermore, the record is replete with reasonable requests by Plaintiffs’ counsel for an explanation of the Pension Board’s protocol and procedures. It is riddled with statements by Pension Board members indicating their lack of knowledge of the nature and legal purpose of the hearing and its protocol. This chaos created a true risk of an erroneous deprivation of Plaintiffs’ interest in Mr. Riley’s pension.”
“Further troubling is the fact that the [Narragansett Assistant Town Solicitor] performed conflicting roles,” the decision continues. “The assistant solicitor acted as a ‘prosecutor’ by presenting the case against Mr. Riley and also acted as an adviser to the pension board.”
Attorney for Riley and his wife, Kristin, Joseph Penza, Jr., took issue with the conflict at the hearing in August last year.
“You cannot have the very same person who is presenting the case [for revoking the pension] advising the board,” he argued. “When I make an objection on a piece of evidence that he’s trying to introduce, he turns to you and gives you what his theory is.”
At a virtual meeting last week, the board discussed the decision, noting that a third-party lawyer would likely be needed in the future.
“Andy Berg is making the case to the pension board to revoke Riley’s pension and then the pension board is relying on Andy Berg for guidance, saying ‘is this the proper procedure, is that the proper procedure?’” said board member Jerry Sahagian. “So we can’t have one lawyer being the prosecutor and at the same time advising the board of what’s appropriate. When we have those issues we need to retain a lawyer. Our error made us look biased.”
Pension board vice chair Daniel Holland said the town should consult with its solicitor on if a third-party attorney was needed.
“This kind of thing happens before the zoning board periodically and sometimes the planning board too,” said pension board member Michael DeLuca, who also serves as the town’s head of community development. “What Jerry’s trying to get at and what Dan is trying to clarify is that there’s a distinction between having the town’s solicitor assisting us in understanding the regulations we have to exercise to carry out our work and having a case that is appealed. When there’s an appeal of a decision we’ve already presumably been guided on or advised on, then the town’s lawyer has to work for one party only, and the extra lawyer has to work for the other party.”
“We need to put something on paper,” DeLuca continued. “We were incapable of responding to [a lack of clear procedure] with the exception of possibly halting the hearing right at the beginning and extending it by a year. But we need to have something on paper. We have a budget and we’d have to hire them. But we definitely have to take those steps.”
Additionally, the superior court judge took issue with the Town of Narragansett’s ordinance regarding the revocation of pensions, finding the language unconstitutionally vague, as it did not provide public employees with sufficient grounds for having pensions revoked and was subject to the discretion of the pension board exclusively.
Article II, Chapter 58, Sections 58-21 through 58-43 of the Narragansett Code of Ordinances lays out the basis for revoking the pension of an employee of the town. It reads as follows:
“Any member who at or after retirement is found guilty by the Pension Board of misfeasance or malfeasance during service with the town and who, but for retirement, would have been discharged or removed from such service [is not entitled to the continued receipt of the] retirement allowance.”
“The Town Forfeiture Provision does not tether a specific act by the public servant to the revocation of his or her pension,” wrote Taft-Carter. “Rather, the condition precedent to revocation is a finding by the Pension Board that the public servant is guilty of misfeasance or malfeasance. Under the Forfeiture Provision, the act of misfeasance or malfeasance is not defined and does not trigger revocation; rather, the outcome turns on the Pension Board’s finding that the public servant is guilty of some undefined act. It is true that a criminal conviction is clearly representative of a wrongful and unlawful act constituting malfeasance. However, unlike many pension revocation ordinances, a criminal conviction is not a triggering event under the Town Forfeiture Provision.”
“Thus, the Forfeiture Provision, taken in its entirety, fails to pass constitutional muster because it is unclear what conduct would prompt a pension revocation hearing and subject a public servant to the revocation of his or her pension,” the judge added.
Taft-Carter mentioned Narragansett’s ordinance lacked clarity and specificity around what kinds of offenses could be grounds for revocation of a pension of a public employee, unlike other Rhode Island municipalities, including Providence and Warwick, which list out and identify such disqualifying acts. The pension board agreed to contact the municipalities mentioned in the decision to review relevant ordinance language in those cities and towns.
“Providence and Warwick do have provisions in there regarding revocation of a pension,” said Stone, who had recused himself from the August 2019 hearing where the board voted to revoke Riley’s pension. “It might be worthwhile for us to take a look at those and see if any of those things might apply in our particular situation. I would be happy to contact the folks on the pension boards in Providence and Warwick and get their policies and procedures and rules and regulations and just take a look at them. It couldn’t hurt to look over those.”