Post by Critique on Feb 7, 2007 3:02:21 GMT -5
01/31/2007
By: SCOTT SPITLER
TAUNTON, MASSACHUSETTS - A state appeals magistrate has upheld the decision of the city retirement board to deny pension to ex-cop David W. Smith, who left the force after being arrested on a sexual assault charge.
The decision, handed down Jan. 19 by the Division of Administrative Law Appeals, allows Smith to apply again for his $38,000 annual pension if he successfully completes his probation.
Smith, 60, resigned from the police department Aug. 3, 2004, the same day he was arrested on charges of indecent assault and battery on a child under the age of 14 and threats to commit a crime.
A 26-year veteran of the force, Smith was never convicted of a crime, though he admitted to his therapist he had been abusing a 7-year-old girl almost nightly for a year. The therapist alerted police.
The lack of a guilty finding was the crux of Smith’s defense he was entitled to retirement benefits.
Daniel Rich, Smith’s attorney, did not return calls for comment Tuesday.
There is still a weeklong window open for Smith to question the decision. Smith and the city have 15 days from receipt of the decision to ask the state Contributory Retirement Appeals Board, which oversees the administrative appeals division, to review the outcome.
The 15 days will expire in the middle of next week, Chief Administrative Magistrate Chris Connolly said.
In November 2005, the city retirement board failed to act on a motion approving the pension, effectively denying it. The board’s lawyer at the time warned against turning down the pension, saying it would likely be overturned on appeal.
At the time, board members refused to comment on the reasons for their actions, and on Tuesday questions were directed to the board’s attorney.
Citing the “sensitive nature of the case,” the Taunton Board of Retirement’s executive director, Paul Slivinski, referred all inquiries to Nan O’Neill, of the Quincy law firm Murphy, Hesse, Toomey & Lehane. Messages left for O’Neill and her assistant were not returned.
The administrative magistrate who heard the appeal, Judithann Burke, decided that since the charges, which she called “repugnant,” have not been resolved, Smith cannot claim his retirement benefits.
“If the [Taunton Retirement Board] were to grant the pension prior to the final resolution of the criminal complaints, it could be faced with the difficult task of trying to recoup the amounts of any payments made to [Smith],” Burke wrote. “Certainly, if [Smith] completes the period of probation without incident, he will be entitled to his retirement allowance paid retroactively.”
He pleaded not guilty to the charges but agreed to a plea deal of four years’ pretrial probation. Smith’s probation is due to end in May 2009.
Smith is not required to register as a sex offender, but he was ordered to undergo counseling, pay child support and stay away from the victim.
The controversial agreement offered by the district attorney was a key campaign issue Sam Sutter used to oust longtime Bristol County DA Paul Walsh from office in November.
www.tauntongazette.com/site/news.cfm?newsid=17786164&BRD=1711&PAG=461&dept_id=24232&rfi=6
By: SCOTT SPITLER
TAUNTON, MASSACHUSETTS - A state appeals magistrate has upheld the decision of the city retirement board to deny pension to ex-cop David W. Smith, who left the force after being arrested on a sexual assault charge.
The decision, handed down Jan. 19 by the Division of Administrative Law Appeals, allows Smith to apply again for his $38,000 annual pension if he successfully completes his probation.
Smith, 60, resigned from the police department Aug. 3, 2004, the same day he was arrested on charges of indecent assault and battery on a child under the age of 14 and threats to commit a crime.
A 26-year veteran of the force, Smith was never convicted of a crime, though he admitted to his therapist he had been abusing a 7-year-old girl almost nightly for a year. The therapist alerted police.
The lack of a guilty finding was the crux of Smith’s defense he was entitled to retirement benefits.
Daniel Rich, Smith’s attorney, did not return calls for comment Tuesday.
There is still a weeklong window open for Smith to question the decision. Smith and the city have 15 days from receipt of the decision to ask the state Contributory Retirement Appeals Board, which oversees the administrative appeals division, to review the outcome.
The 15 days will expire in the middle of next week, Chief Administrative Magistrate Chris Connolly said.
In November 2005, the city retirement board failed to act on a motion approving the pension, effectively denying it. The board’s lawyer at the time warned against turning down the pension, saying it would likely be overturned on appeal.
At the time, board members refused to comment on the reasons for their actions, and on Tuesday questions were directed to the board’s attorney.
Citing the “sensitive nature of the case,” the Taunton Board of Retirement’s executive director, Paul Slivinski, referred all inquiries to Nan O’Neill, of the Quincy law firm Murphy, Hesse, Toomey & Lehane. Messages left for O’Neill and her assistant were not returned.
The administrative magistrate who heard the appeal, Judithann Burke, decided that since the charges, which she called “repugnant,” have not been resolved, Smith cannot claim his retirement benefits.
“If the [Taunton Retirement Board] were to grant the pension prior to the final resolution of the criminal complaints, it could be faced with the difficult task of trying to recoup the amounts of any payments made to [Smith],” Burke wrote. “Certainly, if [Smith] completes the period of probation without incident, he will be entitled to his retirement allowance paid retroactively.”
He pleaded not guilty to the charges but agreed to a plea deal of four years’ pretrial probation. Smith’s probation is due to end in May 2009.
Smith is not required to register as a sex offender, but he was ordered to undergo counseling, pay child support and stay away from the victim.
The controversial agreement offered by the district attorney was a key campaign issue Sam Sutter used to oust longtime Bristol County DA Paul Walsh from office in November.
www.tauntongazette.com/site/news.cfm?newsid=17786164&BRD=1711&PAG=461&dept_id=24232&rfi=6